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2010 DIGILAW 204 (PNJ)

Mohinder Singh v. Pritpal Singh

2010-01-11

VINOD K.SHARMA

body2010
Judgment VINOD K.SHARMA, J. 1. Cm No.25170-CII of 2008 allowed. The applicant-petitioner is exempted from filing the certified copies of Annexures P/1 to P/5 and Annexures P/1 to P/4 are taken on record. CR No.6841 of 2008 2. This revision petition is directed against the order, passed by the learned Courts below, on an application moved by the petitioner under Order 39 Rules 1 and 2 of the Code of Civil, seeking injunction against, the alienation of the property during the pendency of the suit. 3. The plaintiff/petitioner filed a suit for specific performance of agreement to sell, which is contested by the respondents. Along with the suit, the plaintiff/petitioner also moved an application under Order 39 rules 1 and 2 of the Code of Civil Procedure seeking injunction against alienation of the suit property during the pendency of the suit. 4. The learned trial Court rejected the application for injunction. 5. The appeal also stands dismissed. The order passed by the learned lower appellate Court reads as under: - "10. Here after careful scanning of the impugned order and the record it is found that there is no illegality or irregularity in the order which might have called for interference of this court in appeal. From the perusal of the record, it transpires that respondent No.1 agreed to sell the plot in dispute to the appellant for a sum of Rs.28 lacs and after receiving an amount of Rs. One lac as earnest money executed the agreement in his favour on 23.9.2003. Actually respondent No.1 had earlier agreed to purchase the said plot from defendants no.2 to 6 vide agreement to sell dated 8.8.2003, for a sum of Rs.25 Lacs. According to the learned counsel for respondent No.1, the agreement between respondents inter-se could not be materialized and as such respondent No.1 is not in a position to execute the sale deed in respect of the plot in dispute in favour of the appellant. Admittedly, the appellant had paid Rs.90,000/- through cheque and Rs.10,000/- in cash to respondent No.1 as earnest money at the time of execution of agreement to sell dated 23.9.2003. It is also not disputed that the said cheque of Rs.90,000/- has not been encashed by respondent No.1 till date. As per the case of the appellant, the sale deed was to be executed on 25.12.2003 by respondent No.1 in his favour. It is also not disputed that the said cheque of Rs.90,000/- has not been encashed by respondent No.1 till date. As per the case of the appellant, the sale deed was to be executed on 25.12.2003 by respondent No.1 in his favour. However, there is nothing on the file that the appellant came present in the office of Sub Registrar, Mohali on 25.12.2003. Rather it has been pleaded in Para No.6 of the plaint that he came present in the office of Sub Registrar, Mohali on 15.12.2005 which was not the date fixed for registration of the sale deed. There is nothing on the file that the appellant himself was ready and willing to get execute the sale deed on the stipulated date. Had it been so then he would not have waited for a period of about two years in approaching the civil court for specific performance of the said agreement. There is nothing on the file that he ever issued any notice to respondent No.1 after 25.12.2003 asking him to execute the sale deed. This conduct on the part of the appellant support the contention of respondent No.1 that the appellant himself has shown his inability to execute the sale deed and had taken back the earnest money from him. Admittedly, there is no privity of contract between the appellant and respondents No.2 to 6. Moreover, an agreement to sell in itself does not create any interest in the suit property in favour of the appellant especially when he himself had not perform his part of the contract in question. " 6. Learned counsel for the petitioner, by placing reliance on the judgment of the Honble Supreme Court in Maharwal Khewaji Trust (Regd.), Faridkot V/s Baldev Dass, JT 2004 (9) J. T.216, contends that the learned Courts below committed an error in dismissing the application moved by the petitioner. 7. On consideration, I find no force in the contention raised by the learned counsel for the petitioner. In Maharwal Khewaji Trust (Regd.), Faridkot Vs Baldev Dass (supra), the Honble Supreme Court, has not laid down, that the injunction is to be granted in all cases where injunction against alienation is prayed for. The Honble Supreme Court has laid down that injunction can be granted to avoid the multiplicity of proceedings. In Maharwal Khewaji Trust (Regd.), Faridkot Vs Baldev Dass (supra), the Honble Supreme Court, has not laid down, that the injunction is to be granted in all cases where injunction against alienation is prayed for. The Honble Supreme Court has laid down that injunction can be granted to avoid the multiplicity of proceedings. However, in case of sale, by the owner during the pendency of suit, the sale would be hit by the principle of lis pendens, and there will arise no question of multiplicity of proceedings, as the lis pendens vendee, would be bound by the decree and will not be entitled to claim third party rights. It cannot be said that the petitioner is to suffer irreparable loss, or injury if the injunction prayed is not granted. One of the condition stipulated for grant of injunction is that the party seeking injunction, should suffer irreparable loss or injury which cannot be compensated in money. By refusal of injunction petitioner is not likely to suffer any injury much less irreparable injury which may entitle him to seek temporary injunction. 8. No ground, therefore, is made out to interfere with the judgment passed by the learned Courts below.