Harbhajan Singh and Another vs Daljit Singh Sahi and Another

Permod Kohli

Legality and Proprietary of the order dated 17.12.2010 passed by Additional District Judge, Patiala in appeal against the order dated 4.6.2009 passed by Civil Judge Senior Division, Patiala has been questioned in the present Revision Petition invoking the superintendence jurisdiction of this Court under Article 227 of the Constitution of India.

Brief facts relevant for the purposes of the present revision petition are being noticed hereinafter. Petitioners herein filed a suit for possession by way of specific performance of contract on the basis of an agreement to sell dated 29.5.2004 allegedly executed by the defendants-respondents in respect to suit land measuring 43 kanals 17� marlas situated at Village Sanour, Tehsil and District Patiala. It was inter alia pleaded that an amount of Rs. 20, 50,000/-(Rupees Twenty Lacs and Fifty Thousand only) was paid as earnest money and the defendants agreed to execute and register sale deed in respect to the suit land on 14.4.2006. It is further stated that sale price was fixed at the rate of Rs. 37,50,000/-per killa. The plaintiffs, further alleged that they reached the Office of Sub-Registrar Patiala alongwith balance sale consideration. In view of the public holidays on 14.4.2006 to 16.4.2006 they waited for the defendants in the Office of Sub-Registrar but they did not turn up. Plaintiffs accordingly made an application dated 13.4.2006 supported by an affidavit before Sub-Registrar, Patiala the same was returned to them with the endorsement of their presence. Plaintiffs, further alleged that they again visited the Office Sub-Registrar, Patiala on 17.4.2006 with the hope that the defendants will execute sale deed but defendants did not turn up and an endorsement was again sought from the Office of the Sub-Registrar regarding their presence. Plaintiffs-petitioners further pleaded that they were always willing to pay the balance sale consideration and were ready with the balance sale consideration but the defendants did not execute the sale deed. Simultaneously with the filing of the suit plaintiffs also made an application under Order 39 Rules 1 and 2 CPC seeking ad interim injunction restraining the defendants from alienating the suit land during the pendency of the suit. On being put to notice the defendants appeared and filed their reply. While admitting the agreement to sell dated 29.5.2004 and receipt of earnest money it was pleaded that the agreement relied upon by the plaintiffs is forged and fabricated document. The defendants, however, claimed to be in possession of an agreement of even date.

After hearing the parties the trial Court vide its detailed and well reasoned order dated 4.6.2009 granted ad interim injunction restraining the defendants from alienating the suit land to any other person except the plaintiff till the decision of the case.

Order of the trial Court came to be challenged before the Additional District Judge, Patiala, who reversed the same vide the impugned order dated 17.12.2010 and dismissed the application for grant of interim injunction on two counts. It has been observed that the plaintiffs have failed to show their readiness and willingness for the purchase of the land as no material has been brought on record to establish that they had the arrangement for balance sale consideration. It has also been observed that the plaintiffs kept sitting over the matter for three years and filed the suit on the last date when limitation was to expire. It has also been observed that the plaintiff did not have the intention to pay the balance amount of sale consideration which is heavy amount and earned interest on the same almost for three years. Second ground for setting aside trial Court''s order is application of doctrine of lis pendens contemplated u/s 52 of Transfer of Property Act. It is further observed that the right of the plaintiffs qua the suit land is protectd as any sale during the pendency of the lis will be hit by the doctrine of lis pendens and thus no irreparable loss would be caused to the plaintiffs.

I have heard learned counsel for the parties at length and carefully perused the orders pased by the Civil Judge, Senior Division and the Appellate order. The trial Court on consideration of the all relevant factors exercised its judicial discretion to grant the ad interim injunction restraining the defendants from alienating the suit property during the pendency of the suit, holding that the plaintiffs have prima facie case and balance of conveniance also tilts in their favour. Learned Appellate Court, however, set aside the order of the Trial Court on the grounds noticed hereinabove. On careful consideration of the order of the Appellate Court, I am of the considered opinion that the Appellate Court has exceeded its jurisdiction in setting aside the well reasoned order passed by the Trial Court granting injunction. Appellate Court has also specifically held that the agreement to sell in respect of the sale of the suit land has been admitted by the defendants in their pleadings. Defendants also acknowledged the receipt of the earnest money from the plaintiffs as also the price of land. Defendants, however, took a plea that they remained present in the Office of Sub-Registrar on both the days i.e. 13.4.2006 and 17.4.2006 but the plaintiffs did not turn up. It was further pleaded by the defendants that since plaintiffs never contacted the defendants for execution of the sale deed, the earnest money stands forfeited. Defendants also disputed the agreement to sell alleging the same to be forged and fabricated. Once the transaction of sale is admitted by the defendants including the receipt of sale consideration the plaintiffs had established a prima facie case. The question whether the agreement to sale relied upon the plaintiffs is same as was executed by defendants or a different one is a question to be decided during the trial. Transaction of sale having been admitted by the defendants the First Appellate Court committed a glaring illegality in holding that the plaintiffs have no prima facie case. Observation of the First Appellate Court that the plaintiffs have failed to establish their willingness is not based upon any specific pleadings of the defendants or material on record. It goes without saying that such findings/observations are perverse in nature. Particularly in view of the specific averment made in the plaint that the plaintiffs were ready and willing to perform their part of the contract. It is settled principle of law that the discretionary order of grant of injunction is not to be intefere even if two views are possible and the Appellate Court can arrive on a different conclusion unless the order of the Trial Court suffers from any perversity, illegality or is otherwise contrary to law. In AIR 2010 Supreme Court 3221 Hon''ble Supreme Court while considering the question of interference in the exercise of judicial discretion to grant or refuse temporary injunction observed as under:

The ratio of the above noted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity.

A similar view has been held by this Court in case of Guru Nanak Education Trust v. Balbir Singh and Others PLR 1995 2

A reading of the order passed by the Appellate Court shows that the said Court has no where recorded a finding that the trial Court has recorded a finding of prima facie case, balance of convenience and irreparable loss without applying the settled principles of law or that it has ignored any material fact while recording a finding in favour of the plaintiff-petitioners. The lower Appellate Court has also not held that the conclusions recorded by the trial Court are perverse or are against the settled principles of law. Without recording any such finding, the Appellate Court has proceeded to contradict the conclusions recorded by the trial Court and in my opinion this course adopted by the Appellate Court has the effect of rendering its order as patently illegal and the one which has occasioned failure of justice. The extent and scope of jurisdiction of the lower Appellate Court to interfere with the order passed by the trial Court in exercise of its jurisdiction under Order 39, rules 1 and 2, has been discussed in Smt. Vimla Devi Vs. Jang Bahadur, . A learned Single Judge of that Court has summed up the legal position in the following words:

The order refusing temporary injunction of a discretionary character. Ordinarily Court of appeal will not interfere with the exercise of discretion by the trial Court and substitute for it its own discretion. The interference with the discretionary order, however, may be justified if the lower Court acts arbitrarily or perversely, capriciously or in disregard of sound legal principles or without considering all the relevant records.

The mere possibility of the Appellate Court coming to a different conclusion on the same facts and evidence will also not justify interference.

Applying the ratio of the principle enunciated in the aforesaid judgments it needs no further discussion that the order of the Appellate Court sufferes from material illegality and is not sustainable in law. It is the duty of the Court to protect the property in dispute during the pendency of the lis unless it becomes necessary to allow the alteration of the existing scenario. At the first place the question of readiness and willingness is required to be considered after the trial and thus the observation of the First Appellate Court on this issue are totally erroneous in law that too without any specific plea raised by the defendants in the reply. As regards the question of application of doctrine of lis pendens is concerned if any of the parties is allowed to create a third party right it not only permits alteration of the suit property but also invites multiplicity of the proceedings. If the defendants are permitted to alter the property or change its ownership during the pendency of the suit, it is bound to create multiplicity of proceedings. Such a situation is not warranted in law. In view of the admission on the part of the defendants regarding the execution of the agreement to sale and receipt of sale consideration, order of the Lower Appellate Court suffers from infirmities both factual and legal thus, is contrary to the well established principles of law and is erroneous in nature. This Revision petition accordingly succeeds and the order of the Lower Appellate Court dated 17.12.2010 is hereby set aside and that of the Trial Court restored. No order as to costs.