Dalbir Singh and Others vs Ishwinder Singh and Others

L.N. Mittal, J.—Defendants no. 3 to 11, who are also legal representatives of defendant no. 2 (since deceased), have filed this revision petition under Article 227 of the Constitution of India assailing order dated 07.05.2011 (Annexure P-1), passed by the trial court and judgment dated 16.12.2011 (Annexure P-2), passed by the lower appellate court, thereby granting temporary injunction to respondents no. 1 and 2/plaintiffs and restraining the defendants (petitioners and proforma respondent no. 3 - defendant no.1) from alienating the suit land to anybody during pendency of the suit. Admittedly, defendants no. 2 to 11 agreed to sell the suit land to defendant no.1, vide agreement dated 20.02/03.2006 (Annexure P-3) and received some earnest money and target date for sale deed was fixed as 20.08.2007. Pursuant to said agreement, defendant no. 1 agreed to sell the suit land to the plaintiffs vide agreement dated 26.04.2006 (Annexure P-4) and received earnest money and also received some amount subsequently. Target date for sale deed was fixed to be 20.08.2007. Plaintiffs have filed suit for possession of the suit land by specific performance of both the agreements alleging that the plaintiffs have always been ready and willing to perform their part of the agreement, but defendants committed breach thereof.

Plaintiffs sought temporary injunction restraining the defendants from alienating the suit land during pendency of the suit.

Defendant no.1, while admitting both the agreements, pleaded that he has always been ready and willing to perform his part of the agreement, but plaintiffs committed breach thereof because they did not appear in the office of Sub Registrar on the date fixed for execution of sale deed because they did not have sufficient money. Defendant no. 1 appeared before the Sub Registrar on the said date and got his presence recorded.

Defendants no. 2 to 11 also pleaded that they had not authorized defendant no. 1 to enter into further agreement to sell the suit land to anybody else. Defendants no. 2 to 11 also alleged that they have always been ready and willing to perform their part of the agreement, but defendant no. 1 failed to appear before the Sub Registrar on 20.08.2007 -the date fixed for sale deed. Defendants no. 2 to 11 also sent notices dated 06.08.2007 and 10.09.2007 to defendant no. 1 and on account of breach of agreement by him, the earnest money stands forfeited.

The courts below have granted temporary injunction to the plaintiffs restraining the defendants from alienating the suit land during pendency of the suit. Feeling aggrieved, defendants no. 2 to 11 have filed this revision petition to challenge orders of the courts below.

I have heard counsel for the parties and perused the case file.

Counsel for the parties reiterated their respective versions noticed hereinbefore. Counsel for respondents no. 1 and 2 also relied on judgment of Hon''ble Supreme Court in the case of Julien Educational Trust Vs. Sourendra Kumar Roy and Others, to contend that temporary injunction against alienation should be granted when prima facie case is made out as to the agreement to sell, which has to go to trial.

I have carefully considered the matter.

In the instant case, execution of both the agreements in question is not in dispute. The question is regarding readiness and willingness of the plaintiffs to perform their part of the agreement (Annexure P-4). Prima facie, they have not placed any material on record to depict that they have always been ready and willing to perform their part of the contract. They have not depicted that they appeared before the Sub Registrar on 20.08.2007 (the target date for sale deed) for getting the sale deed executed in terms of the agreement. On the other hand, even the instant suit was filed on 19.08.2010 i.e. on the last date of limitation for filing the suit. In these circumstances, judgment in the case of M/s Julien Educational Trust (supra) is not attracted to the facts of the instant case. The plaintiffs have failed to make out the three necessary ingredients for grant of temporary injunction i.e. prima facie case, balance of convenience and irreparable loss and injury because they have prima facie failed to depict that they have always been ready and willing to perform their part of the agreement. Consequently, they are not entitled to grant of temporary injunction during pendency of the suit. However, nevertheless, in order to safeguard the interest of plaintiffs, necessary direction can be issued to the defendants.

Resultantly, the instant revision petition is allowed. Impugned orders (Annexures P-1 and P-2), passed by both the courts below are set aside. Application for temporary injunction filed by the plaintiffs is disposed of with direction that if, during pendency of the suit, the defendants alienate the suit land, they shall, in the deed of alienation itself, recite about the pendency of the suit and shall, within one month of the alienation deed, place a copy thereof on the record of the trial court. In this manner, interest of plaintiffs shall stand safeguarded because the alienee pendente lite would not be able to plead ignorance of the pendency of the suit and would, therefore, be bound by the decision in the suit, in view of doctrine of lis pendens.

Nothing observed hereinbefore shall have any bearing on merits of the suit. Civil Miscellaneous applications, if any pending, stand disposed of as infructuous.