Smt. Mukesh vs Manoj and Others

L.N. Mittal, J.—In this revision petition filed by defendant No. 1 Smt. Mukesh under Article 227 of the Constitution of India, challenge is to judgment dated 21.3.2011 (Annexure P-2) passed by learned Additional District Judge, Panipat. Respondents No. 1 to 4/plaintiffs have filed suit against defendant No. 1/petitioner and respondent No. 5 Ram Jas-defendant No. 2 alleging that defendant No. 2 as attorney of Devi Singh (since deceased and represented by defendant No. 1 being his daughter and legal heir) agreed to sell the suit land to the plaintiffs. Accordingly, plaintiffs have claimed possession of the suit land by specific performance of the said agreement along with permanent injunction restraining the defendants from alienating the suit land.

Plaintiffs by moving application for temporary injunction sought to restrain the defendants from interfering in possession of the plaintiffs over the suit land and from alienating the suit land during pendency of the suit.

Defendant No. 2 admitted the claim of the plaintiffs.

Defendant No. 1 resisted the suit and the application for temporary injunction and controverted the averments of the plaintiffs.

Learned trial Court vide order dated 3.3.2010 (Annexure P-1) declined to grant temporary injunction to the plaintiffs. However, in the appeal preferred against the said order by plaintiffs No. 1 to 3, learned lower Appellate Court vide impugned judgment (Annexure P-2) affirmed order (Annexure P-1) of the trial court but at the same time, also directed the parties to maintain status-quo regarding alienation of the suit land. Practically, defendants stand restrained from alienating the suit land during pendency of the suit. Feeling aggrieved, defendant No. 1 has filed this revision petition to assail aforesaid part of impugned judgment (Annexure P-2).

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

In opening part of concluding paragraph No. 11 of the impugned judgment, it has been observed as under:

Resultantly, the learned trial Court has rightly observed that there is no prima facie case in favour of plaintiffs-appellants. Equally, there is no balance of convenience in their favour and they are not going to suffer any irreparable loss and injury. The impugned order dated 3.3.2010 is thus affirmed.

In spite of these observations, the lower Appellate Court restrained the defendants from alienating the suit land by directing the parties to maintain status-quo regarding alienation. However, the said order against alienation becomes contradictory to the observations of the lower Appellate Court reproduced hereinbefore. Having affirmed order (Annexure P-1) of the trial court, further order regarding alienation could not have been passed by the lower Appellate Court. The plaintiffs have failed to make out necessary three ingredients for grant of temporary injunction i.e. prima-facie case, balance of convenience and irreparable loss and injury as per findings of both the courts below. Consequently, the plaintiffs are not entitled to any temporary injunction.

However, in order to safeguard the interest of the plaintiffs, it is directed that if defendant No. 1, during pendency of the suit, alienates the suit land, defendant No. 1 shall in the deed of alienation itself specifically recite about the pendency of the suit and shall also, within one month of the alienation, inform the trial Court about the factum of alienation along with copy of the alienation deed to be placed on record of the trial Court. Disposed of accordingly without meaning to express any opinion on the merits of the suit.