Jai Bhagwan Singh vs Attar Kala and Others

L.N. Mittal, J.—Defendant no. 1 has filed this revision petition under Article 227 of the Constitution of India assailing order dated 6.5.2010 passed by the trial court and judgment dated 28.4.2011 passed by the lower appellate court thereby allowing application filed by respondent no. 1-plaintiff for temporary injunction and thereby restraining the defendants (petitioner and proforma respondents no. 2 and 3) from alienating suit land till decision of the suit. Petitioner had filed an earlier suit against respondents no. 2 and 3. During pendency of the said suit, plaintiff-respondent no. 1 purchased suit land from respondents no. 2 and 3. The said suit was decreed ex-parte in favour of the present petitioner. Respondent no. 1 plaintiff by filing the instant suit has challenged the said decree on the basis of alleged fraud.

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

Counsel for the petitioner contended that sale in favour of respondent no. 1-plaintiff by respondents no. 2 and 3 is hit by the doctrine of lis pendens having been made during pendency of the earlier suit. There is considerable merit in the contention. The earlier suit stands decreed against respondents no. 2 and 3 in favour of petitioner. Respondent no. 1-plaintiff is purchaser pendente lite from respondents no. 2 and 3 and is, therefore, also bound by the decree passed in the earlier suit in favour of the petitioner. Consequently, the plaintiff has no prima facie case for grant of temporary injunction. Neither she will suffer any loss or injury much less irreparable one nor balance of convenience is in her favour because by grant of temporary injunction in this suit, the petitioner stands deprived of the fruits of decree passed in earlier suit.

Contention of counsel for respondent no. 1-plaintiff that earlier decree can be challenged on the ground of fraud does not help the plaintiff at this stage. Suffice to observe that present petitioner did not commit any fraud with respondent no. 1 and if any fraud was committed, the same might be by respondent nos. 2 and 3 as vendors and predecessors-in-interest of respondent no. 1 by not disclosing pendency of the earlier suit filed by the petitioner. Consequently, alleged fraud cannot be said to have been committed by the petitioner.

For the reasons aforesaid, I find that respondent no. 1-plaintiff has failed to make out necessary ingredients for grant of temporary injunction. Orders of the courts below granting temporary injunction in favour of plaintiff, therefore, suffer from illegality and jurisdictional error. Accordingly, the instant revision petition is allowed. Impugned orders passed by both the courts below are set aside. Application filed by the plaintiff for temporary injunction stands dismissed. Nothing observed herein shall be construed as an expression of opinion on merits of the suit. Civil miscellaneous application, if any pending, is disposed of as having been rendered infructuous.