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2018 DIGILAW 1036 (MP)

Chandrakanta Rathore v. Gajanand Awasthi

2018-12-19

G.S.AHLUWALIA

body2018
ORDER 1. This petition under Article 227 of the Constitution of India has been filed against the order dated 27.2.2017 passed by the First Additional District Judge, Guna in Case No. 6/10 fo-nh-, by which the application filed by the petitioners under Order VIII rule 1 (3) and under section 151 of CPC has been rejected. 2. The necessary facts for disposal of the present petition in short are that the respondent No. 1 had filed a civil suit for specific performance of contract against respondent No. 2. By order dated 11.10.2004 the respondent No. 2 was directed not to alienate the property in dispute to third person, however, it appears that during the currency of the said interim order, the respondent No. 2 alienated the property to the petitioners by different sale deeds. Accordingly, the respondent No. 1 has filed an application under Order XXXIX rule 2 (a) of CPC against the petitioners as well as respondent No. 2. The petitioners filed an application under section 151 of CPC on the ground that civil suit in which the interim injunction order was passed has already been dismissed and it has been found that the agreement to sale was never executed by respondent No. 2 in favour of respondent No. 1. 3. The said application has been rejected by the impugned order on the ground that the application under Order XXXIX Rule 2 (a) of CPC has been filed on the ground of violation of temporary injunction order dated 11.10.2004 passed by the trial Court. However, merely because the suit has come to an end would not absolve the petitioners from contempt which they have committed and accordingly, the case was fixed for recording of evidence of respondent No. 1. 4. Challenging the order passed by the Courts below it is submitted by the counsel for the petitioners that the suit was filed by respondent No. 1 against respondent No. 2 for the specific performance of contract and the said suit has come to an end in the form of dismissal of the suit by judgment dated 23.12.2011 in which it has been specifically held by the trial Court that the respondent No. 1 has failed to prove that any agreement to sale was executed between him and the respondent No. 2. It is further submitted that there is nothing on record to show that the petitioners were aware of the temporary injunction order passed by the trial Court and in spite of that, they entered into the transaction with respondent No. 2. It is submitted that on the contrary, the respondent No. 2 may have defrauded the petitioners by not disclosing the fact of temporary injunction order. 5. Per contra, it is submitted by the counsel for the respondent No. 1 that aggrieved by the judgment dated 23.12.2011 passed by the Second Additional District Judge, Gwalior in Civil Suit No. 12-A/2011 the respondent No. 1 has filed a first appeal which has been registered as FA No. 13/12 and this Court by order dated 15.2.2012 has directed that any transaction made in regard to the suit property shall be subject to the decision of this appeal. It is further submitted that the appeal is in continuance of the suit, therefore, the petitioners are liable to be punished. However, it is fairly conceded by the counsel for respondent No. 1 that there is nothing on record to suggest that the petitioners, who are the purchasers of the property in dispute, were ever knowing the temporary injunction order passed by the trial Court. 6. Heard learned counsel for the parties. 7. Admittedly the petitioners were not the defendants in the civil suit, therefore, under these circumstances, it is on the part of respondent No. 1 to plead and prove that the petitioners were aware of the temporary injunction order passed by the appellate Court and in spite of that they purchased the property in dispute. In absence of this basic averment, it cannot be said that the petitioners have made themselves punishable under Order XXXIX rule 2 (a) CPC. Accordingly, this Court is of the considered opinion that in absence of specific pleading, the application filed by respondent No. 1 against the petitioners under Order XXXIX rule 2 (a) CPC is not maintainable. 8. Accordingly, this petition is allowed. The further proceedings in Case No. 6/10 pending in the Court of First Additional District Judge, Guna qua the petitioners is hereby set aside. Ravi Rajmani Bansal for petitioners; Ravi Gupta for respondent No. 1 Gajendra Sahu for respondent No. 2.