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2008 DIGILAW 1321 (PNJ)

Satwinder Singh v. Swaran Singh

2008-08-05

VINOD K.SHARMA

body2008
JUDGMENT Vinod K. Sharma, J. (Oral) - This revision petition is directed against the order passed under Order 39 Rules 1 & 2 of the Code of Civil Procedure dismissing an application moved by the petitioners for restraining the defendants from alienating plot No. 2385, Phase XI, Sector 65, Mohali by way of sale gift mortgage or any other manner. 2. The plaintiff set up a case that he had entered into an agreement to sell with defendant No. 1 for a sum of Rs. 14,25,000/-. It was the case of the plaintiff that it was also agreed that along with Rs. 14,25,000/- plus paid up amount up to date would also be paid. Defendant No. 1 was, therefore, to pay a sum of Rs. 14,25,000/- plus Rs. 38,750/- out of which a sum of Rs. 4,00,000/- was paid as earnest money by defendant No. 1 to the plaintiff and the remaining amount was to be paid on or before 15.6.2001. The plaintiff claimed that a cheque for Rs. 26,000/- was also given but the said cheque was dishonoured due to insufficient funds. Thus, only the amount of Rs. 4,00,000/- i.e. the earnest money stood paid. Property was got transferred in the name of defendant No. 1 on an application moved for permission to transfer the said plot. It is the case of the plaintiff that defendant No. 1 got collected the permission later directly from the office of Punjab Urban Development Authority and no further payment was made. 3. However, the stand of the defendant was that total sale consideration was paid and thereafter necessary documents were executed by the plaintiff on the basis of which Punjab Urban Development Authority transferred the plot in favour of the defendant-respondent who is registered owner of the property as on date. 4. Learned trial court came to the conclusion that the suit raises triable issues, thus, a prima facie case is made out in favour of the plaintiff. It also held that the plaintiff would suffer irreparable loss if the injunction is not granted in his favour. Consequently, the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure was allowed. 5. Defendant respondent filed an appeal against the order passed by the learned trial Court. Learned lower appellate court observed as under: "11. It also held that the plaintiff would suffer irreparable loss if the injunction is not granted in his favour. Consequently, the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure was allowed. 5. Defendant respondent filed an appeal against the order passed by the learned trial Court. Learned lower appellate court observed as under: "11. The only contention of learned counsel for the respondent No. 1 is that he has not been paid the remaining amount by the appellant and that he has got the letter dated 1.1.2002 and the conveyance deed dated 29.6.2007 in his favour in connivance with the officials of the Punjab Urban Development Authority. However, at this stage, there is nothing on the file that the aforesaid letter has been got issued in connivance with the officials of Punjab Urban Development. Authority, rather as stated above it has not been disputed that the aforesaid letter has been issued on the basis of documents and affidavits executed by Bahadur Singh in favour of the appellant. Learned counsel for the respondents has failed to show that if the remaining amount has not been paid by the appellant then why the appellant Bahadur Singh executed the documents and the affidavits facilitating the transfer of the plot in favour of the appellant. Not only that the appellant has also paid about Rs. 20.00 lacs to Punjab Urban Development Authority towards the remaining installments whereas it has categorically been admitted by the counsel for the respondents at the time of arguments that no installment was deposited by the respondents after the execution of the agreement to sell in question. The learned counsel for the respondents has failed to show why the respondents did not approach the Punjab Urban Development Authority for stopping transferring process of the plot in question in favour of the appellant and why he had not deposited further installments of the plot and why he allowed the appellant to deposit those installments." 6. Learned lower appellate court, thus, came to the conclusion that the plaintiff neither has a prima facie case nor he was to suffer irreparable loss if the injunction was not granted. The learned lower appellate court observed that the defendant-respondent has already raised the house up to first story. Learned lower appellate court, thus, came to the conclusion that the plaintiff neither has a prima facie case nor he was to suffer irreparable loss if the injunction was not granted. The learned lower appellate court observed that the defendant-respondent has already raised the house up to first story. The court also observed that the plaintiff has not sought a relief of permanent injunction restraining the respondents from raising constructions and in the absence of final relief having been claimed temporary injunction could not be granted and allowed the appeal. 7. Mr. S.K. Sharma, learned counsel appearing on behalf of the petitioners by placing reliance on the judgment of Honble Supreme Court in the case of Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass, 2005(1) Civil Court Cases 430 contended that temporary injunction could not be declined on the basis that the alienation will be subject to law of lis pendens and the construction raised will be at own risk or on the basis of an undertaking that there will be no alienation and construction will be at own risk. Honble Supreme Court has been pleased to lay down : "9. Be that as it may, Mr. Sachhar is right in contending that, unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellants claim being found baseless ultimately, it is always open to the respondent to claim damages, or in an appropriate case, the court may itself award damages for the loss suffered, it any in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same. We think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored." However, it may be noticed that the judgment relied upon has no relevance to the matter in issue as the injunction has been declined to the petitioners as they failed to prove prima facie case and also having failed to show that they were to suffer irreparable loss in case injunction was not granted. 8. Learned counsel for the petitioners thereafter placed reliance on the judgment of Honble Supreme Court in the case of Ram Chandra Singh v. Savitri Devi and others, (2003)8 Supreme Court Cases 311 to contend that the court has inherent jurisdiction to grant relief if relief is obtained by fraud. Honble Supreme Court in Ram Chandra Singhs case (supra) was pleased to lay down as under : "Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter. It is also well settled hat misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceipt and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is also well settled hat misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceipt and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of other in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrines including res judicata." 9. Learned counsel for the petitioners also placed reliance on the judgment of Honble Supreme Court in the case of State of A.P. and Another v. T. Suryachandra Rao, (2005)6 Supreme Court Cases 149 to contend that elements of deceit and injury, misrepresentation or false representation and suppression of material fact or document amount to fraud and as in the present case fraud has been played on the petitioners they were entitled to injunction. Reliance of the learned counsel for the petitioners on the judgment in the case of State of A.P. and Another v. T. Suryachandra Rao (supra) is also misconceived. 10. Fraud has to be proved by way of positive evidence. In the present case, admittedly, possession is with the respondent who is registered owner of the property and the plot was transferred in his name on the basis of documents filed by the plaintiff-petitioners in the estate office. Mere allegations of fraud, without sufficient material, can not be a ground to seek injunction. The fraud has to be proved beyond reasonable doubt by leading evidence. 11. It is proved on record that after the agreement to sell and transfer of plot the defendant-respondent paid a sum of Rs. 20 lack towards the balance payment to Punjab Urban Development Authority. The fraud has to be proved beyond reasonable doubt by leading evidence. 11. It is proved on record that after the agreement to sell and transfer of plot the defendant-respondent paid a sum of Rs. 20 lack towards the balance payment to Punjab Urban Development Authority. The order passed by the learned lower appellate court is, thus, based on the material placed on record which shows that petitioner has no prima facie case in his favour. The findings recorded are in consonance with the law and do not call for interference by this court in exercise of supervisory power under Article 227 of the Constitution of India. No merit. Dismissed. Petition dismissed.