C.M.No.21653-CII of 2008 in C.R.No. 5824 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M.No.21653-CII of 2008 in C.R.No. 5824 of 2008 (O&M) Date of decision : 28.11.2008 Jasdeep Singh Gill ...Petitioner Versus Ravinder Kaur Brar and others ......Respondents CORAM : HON'BLE MR. JUSTICE MAHESH GROVER ..... Present : Petitioner in person. Mr. H.S.Bhullar, Advocate for respondent No.1. Mr. Atul Lakhanpal, Sr.Advocate with Mr. R.S.Bajaj, Advocate for respondent No.2. MAHESH GROVER, J. This order will dispose of C.M.No.21653-CII of 2008 filed in Civil Revision No.5824 of 2008 for vacation of ex-parte stay order granted by this Court on 30.10.2008. The facts of the case leading to the controversy have to be noticed in brief. One Gurcharan Kaur had a son Jatinder Singh and three daughters Narinder Kaur, Ravinder Kaur and Mohinder Kaur. The property in dispute is a plot which belonged to Jatinder Singh upon which a house had been constructed. Jatinder Singh was said to be in Indian Army and he died in the military operations in 1965. The C.M.No.21653-CII of 2008 in C.R.No. 5824 of 2008 (O&M) -2- property was thereafter inherited by his mother Gurcharan Kaur. She was a widow and resided with Ravinder Kaur for number of years. A consent decree was suffered by Gurcharan Kaur during her life time in favour of Ravinder Kaur on 9.10.1972. Efforts were made to get the property mutated in the name of Ravinder Kaur but the same could not be done because there was a requirement of affixation of stamp duty. Another collusive suit was filed for getting the property mutated. Ultimately due to the efforts of the parties the house was mutated in the name of Ravinder Kaur in the year 1986. Gurcharan Kaur died on 19.12.2001. About 2-1/2 years prior to her death the relations between Gurcharan Kaur and Ravinder Kaur became sour and she allegedly shifted her residence to Narinder Kaur and at that point of time she filed a suit for declaration on 8.12.1988 for declaring the consent decree dated 9.10.1972 as null, void and not binding on her. She also pleaded fraud. The suit was dismissed on 20.11.2007, much after her death. The suit was prosecuted by petitioner Jasdeep Singh Gill, petitioner herein (non- applicant). While dismissing the suit, a finding was recorded that the consent decree was valid and that the subsequent suit filed to get the property mutated was also valid. An appeal against the said order has been preferred by the present petitioner which is pending. Along with the appeal an application for stay of alienation was made which was granted. Another application under Order 39 Rules 1 and 2 of the Code of Civil Procedure was filed seeking to restrain the respondent No.1 from raising further construction on the house situated in the plot in C.M.No.21653-CII of 2008 in C.R.No. 5824 of 2008 (O&M) -3- question. The applicant, who is respondent No.1 in the present revision petition was served for 22.10.2008. He filed a reply and the matter was pending for 5.11.2008 for consideration of the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure. The petitioner in the meantime approached this Court by way of present revision petition bearing No.5824 of 2008 and had pleaded that a huge loss is going to be caused to him because of the rapid construction which has been undertaken by the respondent. This Court vide its order dated 30.10.2008 restrained the respondent from raising further construction in the form of addition or alteration of the disputed property. The matter was adjourned to 5.2.2009. The application for vacation of stay was filed in which the applicant (respondent No.1) pleaded that the revision petition was a result of a mala fide action and once the stay matter was pending consideration before the lower appellate Court, the petitioner could not have invoked the jurisdiction of this Court under Article 227 of the Constitution of India, unless it was shown to this court that there was some inordinate delay in disposal of the application for stay. That apart, it was contended that the construction was already at an advanced stage when the petitioner approached this Court and the construction was in his knowledge. Photographs of the construction were shown which reflected that the shuttering has been completed and the roof was likely to be laid. It was then pleaded that the construction being to the knowledge of the petitioner he has abused the process of law and has concealed this fact while invoking the C.M.No.21653-CII of 2008 in C.R.No. 5824 of 2008 (O&M) -4- jurisdiction of this Court. On the other hand, learned counsel for the petitioner (non-applicant) contended that the decree obtained by the respondent No.1 was a result of fraud. In the suit resulting in compromise decree late Gurcharan Kaur was never served. Even if it is alleged that she was residing with Narinder Kaur, yet her address was shown to be that of Bathinda, which prima facie showed that she had not been served and that there is an element of suspicion in it. It was further contended that there was no evidence on the basis of which the judgment could have been passed. It was next contended that the house had all alone been let out by Gurcharan Kaur in favour of the tenants and ultimately after the respondent No.1 had fraudulently got the house mutated in her favour at the ripe age of 81 years she was turned out of the house and as a result of which she filed a suit in the year 1988 challenging the consent decree and also raised a plea of fraud. It was specifically pleaded that the papers were forged when she was made to sign some documents in the garb of getting pension papers signed. It was then contended that in the suit that has been filed now a complete somer sault has been taken and a family settlement has been pleaded, even though in the earlier suit in which the consent decree was passed it was pleaded that Ravinder Kaur was a benami holder of the plot and the entire house had been constructed with the funds of Narinder Kaur. It was then contended that in 1999 a Will had been executed in favour of the petitioner. On the strength of this entire material it was pleaded that the respondent No.1 had played a fraud upon Gurcharan Kaur and had also played a fraud upon the C.M.No.21653-CII of 2008 in C.R.No. 5824 of 2008 (O&M) -5- Courts and therefore the injunction that has been granted is just and valid. Reliance has been placed on Maharwal Khewaji Trust(Regd.), Faridkot v Baldev Dass, 2005(1) Civil Court Cases 430 (S.C.) wherein the apex court has observed that unless and until a case of irreparable loss or damage is made out by a party to the suit, Court should not permit the nature of property to be changed which also includes alienation or transfer of property which may lead to loss or damage being caused to the party who may ultimately succeed. Respondent No.3 has also supported the case of the petitioner and stated that the consent decrees were a nullity and could not have been given effect. Reliance was placed on Hamza Haji v. State of Kerala 2006(4) Civil Court Cases 407(S.C.) and Ram Chandra Singh v. Savitri Devi & Ors. 2003(3) Civil Court Cases 678 (S.C.). During the course of proceedings a reference was also made to the relevant material which has come on record during the course of trial of the suit including the pleadings. I have heard the learned counsel for the parties at some length. Concededly, the application for grant of stay under Order 39 Rules 1 and 2 of the Code of Civil Procedure is pending before the learned appellate Court wherein an appeal has been preferred. Prima facie, the facts of the case reveal that a collusive decree was suffered in the year 1972 and mutation regarding the house was entered in the year 1986. In 1988 Gurcharan Kaur had instituted a suit for setting aside the consent decree. However, her plea was negatived and the C.M.No.21653-CII of 2008 in C.R.No. 5824 of 2008 (O&M) -6- suit was dismissed which also prima facie lends credence to the contention of the learned counsel for the respondent No.1 that the consent decree was valid and that there was no fraud played upon Gurcharan Kaur. In any eventuality, this is the subject-matter of the appeal and it would not be appropriate to comment upon this any further. Suffice it to say, that the application under Order 39 Rules 1 and 2 C.P.C. is pending and from the photographs it appears that the construction is at an advanced stage. It is not the case of the parties that the house was not existing prior thereto. The house was concededly constructed on the plot in question and it is only the first floor which is being added. This Court does not wish to comment upon the controversy any further lest it prejudice the rights of the parties before the appellate Court. Since the revision petition was filed with a limited prayer that the lower appellate court be directed to decide the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, therefore, it is deemed appropriate that the revision petition itself be disposed of. Hence, it is being preponed and is taken up today. In all fairness, it would be just and appropriate if the revision petition is also disposed of with a direction to the appellate Court to decide the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure by 2.12.2008. The parties are directed to appear before the lower appellate Court on the said date. It is made clear that the application shall be decided on C.M.No.21653-CII of 2008 in C.R.No. 5824 of 2008 (O&M) -7- that very day by hearing the contentions of the parties and no further adjournment shall be granted. Till 1.12.2008, however, the order dated 30.10.2008 shall remain operative. November 28, 2008 (MAHESH GROVER) JUDGE dss