Civil Revision No.3621 of 2010(O&M) [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Civil Revision No.3621 of 2010(O&M) Decided on : February 09, 2011 Haryana State Agricultural Marketing Board and another ... Petitioners VERSUS Ved Parkash and another ... Respondents CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Jagdeep Singh, Advocate for the petitioners. Mr.Tara Chand, Advocate for respondent No.1. A.N.JINDAL, J.- Vide order dated 13.9.2008 passed by the Civil Judge, the application of the plaintiffs - respondents (herein referred as `the respondents') for restraining the defendant – petitioners (herein referred as `the petitioners') from auctioning the shop No.68, New Anaj Mandi, Bhiwani, during the pendency of the suit, had been dismissed. However, the Appellate Court vide judgment dated 16.12.2009 accepted the appeal. The allegations in nutshell are that the shop in question was sold in public auction to the respondent Ved Parkash for a sale consideration Civil Revision No.3621 of 2010(O&M) [ 2 ] of Rs.8,06,000/- vide allotment letter dated 30.7.1991. After depositing 25% of the allotment money, the allotment letter was issued. However, the remaining amount of Rs.6,01,500/- was to be deposited in the instalments or in lump-sum. The respondent Ved Parkash after receiving the possession raised the construction as per plan and commenced his business, which was being run in the name and style of Pankaj Trading Company and he has been running the business as such since the year 2004-2005. After the allotment, Ved Parkash – respondent had transferred ½ share to Bimla Devi – respondent No.2. It is further alleged that some instalments could not be paid in time by Ved Parkash – respondent, but in the year 2006-2007, they were ready to pay the delayed instalments, but the petitioners declined to accept the same. However, they advertised for re- auctioning the shop on 5.9.2008. The respondents while claiming their ownership over the shop in question has further alleged that they have already raised the construction and the same could not be resumed without following the procedure as provided under the law. Therefore, they could not re-auction the same. The defendants in their written statement have denied all the allegations and submitted that the defendant Market Committee vide its resolution No.2 dated 4.2.2004 had resumed the shop in dispute and the it is in possession since then. The respondents did not make the payments of the remaining amount i.e. 75% of the sale consideration. Ved Parkash has also transferred ½ share of the shop without any permission and they even did not construct the shop as per the approved plan by the concerned authorities. Therefore, the defendants prayed for rejection of the application for interim injunction. Civil Revision No.3621 of 2010(O&M) [ 3 ] The Trial Court on scrutiny of the records declined to grant injunction, whereas, the Appellate Court took the different view, that is why the petitioners are before me. The present suit was filed by the plaintiffs for declaration claiming themselves to be the owners of the shop in question and also have challenged the order of resumption being illegal, without jurisdiction and procedure, which was never conveyed to the plaintiffs and have also sought a decree for permanent injunction, as a consequential relief restraining the defendants from auctioning and demolishing the shop in dispute. The petitioners set up the plea that the respondents are not in possession of the shop in dispute. The resumption was quite legal and valid and they had all rights to re-auction the property. Having heard the rival contentions, it may be observed that in order to seek the ad-interim injunction, the plaintiffs had to prove a prima facie case in their favour and that on refusal to grant the injunction, they would suffer an irreparable loss and the balance of convenience also lies in their favour. The person, who does not come to the court with clean hands is certainly not entitled to the discretionary relief of injunction. Admittedly, the shop was allotted to Ved Parkash – plaintiff No.1, vide allotment letter dated 30.7.1991, who after depositing 25% of the allotment money of Rs.8,06,000/- took the possession of the same and no such evidence has been brought on record by the plaintiffs in order to prima facie establish, if he had deposited the remaining sum of Rs.6,01,500/- as per the terms settled at the time of auction and got issued the Conveyance Letter. The records further reveal that Administrator, Market Committee, Civil Revision No.3621 of 2010(O&M) [ 4 ] Bhiwani issued various notices upon plaintiff Ved Parkash on 30.7.1991, 23.12.1991, 12.2.1991, 18.6.1992 and 20.7.1992, etc., requiring him to make payment of the remaining sale price as per terms and conditions of the allotment, but to no response. Ultimately, vide resolution Annexure A- II, the shop in question was resumed vide report Annexure A-I and vide notice Annexure A-IV, the plaintiff was informed about the resumption of the shop in question. However, even after the order of resumption duly conveyed to him (Ved Parkash), he remained silent up to the year 2008 when the present suit was filed. He even did not challenge the resumption order within the requisite period. After the resumption order has been passed, the plaintiff though was in possession of the shop, but could not be termed in legal possession, so as to entitle him for seeking the injunction, particularly, when his admitted case is that he never deposited the remaining sale price of the shop in question as agreed to by him at the time of allotment. While examining another aspect of the case, it is admitted case of the plaintiff that after the shop was allotted to him, he transferred half share in the name of Bimla Devi – plaintiff No.2, which amounts to fragmentation of the plot in question. The resumption notice in this regard was issued by the defendants vide show cause notice No.1271 dated 20.7.1997 for seeking explanation of Ved Parkash as to why fragmentation was made by him in violation of the Clause (10) of the notification dated 10.3.2000. No explanation in this regard was submitted by the plaintiffs. Thereafter, another show cause notice bearing No.1881 dated 13.11.1997 was also sent to Ved Parkash asking him to make the payment, otherwise, the site would Civil Revision No.3621 of 2010(O&M) [ 5 ] be resumed, but no response was made. Thereafter, Ved Parkash was informed about the resumption of the plot vide letter No.1400 dated 29.12.2004. Even thereafter, the respondent Ved Parkash did not challenge the said order. If the resumption order Annexure A-I is not considered to be correct, even then the order of resumption conveyed vide letter No.1400 dated 29.12.2004 cannot be said to be in violation of any provision of law. The resumption is not only on the ground of non-payment of the amount of instalments, but also on account of fragmentation of the building site in violation of clause (10) of the notification dated 10.3.2000. In this case, the respondents having admitted their fault certainly cannot claim any right over the site in question merely on deposit of the earnest money of 25% and they also loose their contention of showing a prima facie case in their favour, particularly when respondent Ved Parkash transferred the part of the building site, though he had not yet become the owner. As such, even though the plaintiffs are in unauthorised possession of the shop in dispute, they cannot be said to have a prima facie case in their favour for grant of injunction, particularly against those who are the owners of the same. The plaintiffs cannot be said to have come with clean hands in the Court for seeking the injunction, therefore, the balance of convenience also does not lie in their favour. For the aforesaid reasons, this court is of the considered opinion that the Appellate Court has not taken a correct view of the matter while granting injunction to the respondents, who are apparently not fair in their conduct. As such, the impugned order is bound to be reversed. Resultantly, this petition is allowed. The impugned order dated Civil Revision No.3621 of 2010(O&M) [ 6 ] 16.12.2009 passed by the Appellate Court is set aside and that of the Trial Court dated 13.9.2008 is upheld. February 09, 2011 ( A.N.JINDAL ) `gian' JUDGE