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2010 DIGILAW 2790 (PNJ)

Om Dutt Sharma v. Rattan Pal Sharma And Others

2010-09-30

L.N.MITTAL

body2010
Judgment L.N.Mittal, J. 1. CM No.l4734-CII of 2010 Allowed as prayed for. CM No.l4735-CII of 2010 The application is allowed and Annexure P-1 is taken on record, subject to all just exceptions. Main Case. Om Dutt Sharma-plaintiff has invoked the jurisdiction of this Court under Article 227 of the Constitution of India, having failed .n both the Courts below to secure temporary injunction. 2. Petitioner-plaintiff has filed suit against respondents. Respondent No.l is real brother of the petitioner. Respondent No.l filed civil suit No.419 dated 17.08.2001 against the petitioner. In the said civil suit, petitioner, who was defendant, through his general attorney filed written statement admitting the claim of respondent No.1, who was plaintiff in that suit, and also made statement in the Court to the same effect. Consequently, the said suit was decreed vide decree dated 26.10.2002 declaring respondent No.l to be owner in possession of the suit property i.e house No.450, Sector 19, Faridabad. 3. Petitioner has filed instant suit challenging the said decree dated 26.10.2002 as well as sale deed dated 17.04.2006 whereby defendant No.l sold the suit property to defendant Nos.2 and 3. During pendency of the suit, plaintiff sought temporary injunction restraining the defendant from dispossessing the plaintiff forcibly from the suit property and from alienating the same to anybody else. The plaintiffs case is that suit plot was allotted to him by Haryana Urban Development Authority (HUDA) vide letter dated 31.07.1980 and thereafter he constructed house thereon. Defendant-respondent No.l had no pre-existing right in the suit property and, therefore, consent decree dated 26.10.2002 is not binding on the plaintiff and sale of the suit house on the basis of said decree by defendant No. 1 in favour of defendant No.2 and 3 is also not binding on the plaintiff. 4. Defendants contested the suit and the application for temporary injunction. Allegations of the plaintiff-petitioner were denied. Defendant Nos.2 and 3 also claimed to be bona fide purchasers of the suit property for consideration. Various other pleas were also raised. 5. Learned Additional Civil Judge (Senior Division), Faridabad vide impugned order dated 04.02.2010 Annexure P-l dismissed the plaintiffs application for temporary injunction. Appeal preferred by the plaintiff against the said order has been dismissed by learned Additional District Judge, Faridabad vide impugned order dated 10.04.2010, Feeling aggrieved, plaintiff has preferred the instant revision petition. 6. 5. Learned Additional Civil Judge (Senior Division), Faridabad vide impugned order dated 04.02.2010 Annexure P-l dismissed the plaintiffs application for temporary injunction. Appeal preferred by the plaintiff against the said order has been dismissed by learned Additional District Judge, Faridabad vide impugned order dated 10.04.2010, Feeling aggrieved, plaintiff has preferred the instant revision petition. 6. I have heard learned counsel for the petitioner and perused the case file. 7. Learned counsel for the petitioner vehemently contended that since respondent No.1 had no pre-existing right in the suit property, he could not become owner in possession thereof on the basis of consent decree dated 26.10.2002. Reliance in support of this contention has been placed on judgment of this Court in the case of Suresh versus Smt. Mariyan and others, (2009-3)155 PLR 157. The contention does not help the plaintiff-petitioner. On the basis of consent decree dated 26.10.2002, respondent No.l was declared to be owner in possession of the suit property. Respondent Nos.2 and 3 have purchased the suit property from respondent No. 1 for valuable consideration. They are prima facie bona fide purchasers of the suit property. Consequently, temporary injunction asked for cannot be granted in favour of the plaintiff-petitioner. 8. In addition to the aforesaid, plaintiff filed the instant suit on 09.01.2010 i.e more than seven years after the passing of the decree dated 26.10.2002 to which petitioner was party. Suit has been filed almost 4 years after the sale deed which was executed by defendant No.l in favour of defendant Nos.2 and 3. The suit is thus prima facie barred by limitation. 9. Plaintiff-petitioner is also prima facie not in possession of the suit property. Vide decree dated 26.10.2002, defendant No.l was declared to be owner in possession of the suit property and he sold the same to defendant Nos.2 and 3 vide sale deed dated 17.04.2006. Consequently, prima facie defendant Nos.2 and 3 are in possession of the suit property. Accordingly, there is no prima facie case for grant of temporary-injunction in favour of plaintiff-petitioner. Balance of convenience is also against the plaintiff-petitioner and in favour of the defendants/respondents. Petitioner and respondent No.l are real brothers. Decree dated 26.10.2002 was passed in favour of respondent No.l and against the petitioner and thereafter respondent No. 1 sold the suit property to respondent Nos.2 and 3 for valuable consideration. Balance of convenience is also against the plaintiff-petitioner and in favour of the defendants/respondents. Petitioner and respondent No.l are real brothers. Decree dated 26.10.2002 was passed in favour of respondent No.l and against the petitioner and thereafter respondent No. 1 sold the suit property to respondent Nos.2 and 3 for valuable consideration. Consequently the petitioner now cannot turn around to claim the suit property. Grant of temporary injunction would cause irreparable loss and injury to respondent Nos.2 and 3 whereas no loss and injury would be caused to the petitioner by refusal to grant temporary injunction. 10. Learned counsel for the petitioner relying on judgment of Honble Supreme Court in the case of Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd and others, (2005-2)140 PLR 1 (SC) : AIR 2005 Supreme Court 439 and judgment of this Court in the case of Basant Kumar v. Romesh Kumar Deora, (2008-4)152 PLR 313 contended that petitioners power of attorney holder could not depose on behalf of the petitioner in the previous suit No.419 of 2001 instituted against petitioner by respondent No. 1. The contention is completely misconceived. In the aforesaid judgments, it has been laid down that attorney holder cannot be a substitute as witness for the principal and facts which are within the knowledge of the principal, cannot be deposed to by the attorney. However, attorney can certainly act on behalf of the principal. In the instant case, attorney made statement on behalf of the petitioner to admit the claim of respondent No.l in Suit No.419 of 2001. The attorney did have the authority to make such a statement. Petitioner cannot challenge the said action of the attorney. The contention is completely misconceived and devoid of merit. 11. Both the Courts below have considered the matter in correct perspective. Detailed reasons have been recorded by the lower appellate Court to decline temporary injunction to the plaintiff petitioner. Even the trial Court recorded sufficient reasons for the same. There is no illegality or jurisdictional error in the orders of the Courts below so as to warrant interference in exercise of revisional jurisdiction. Detailed reasons have been recorded by the lower appellate Court to decline temporary injunction to the plaintiff petitioner. Even the trial Court recorded sufficient reasons for the same. There is no illegality or jurisdictional error in the orders of the Courts below so as to warrant interference in exercise of revisional jurisdiction. The revision petition is completely devoid of merit and appears to be result of greed and dishonesty or at best result of differences between petitioner and respondent No.l, who are brothers, but for the same, respondent Nos.2 and 3 prima facie being bona fide purchasers of the suit property for consideration cannot be made to suffer. The revision petition is accordingly dismissed in limine. 12. However, nothing observed hereinbefore shall be construed as an expression of opinion on the merits of the suit.