IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CR NO.313/2009
Date of Decision:21.1.2009.
Chandan
..........Petitioner.
Versus
Narma and another.
..........Respondents.
CORAM: HON'BLE MR.JUSTICE JASWANT SINGH.
Present: Mr. Sanjiv Gupta,Advocate for the petitioner-plaintiff.
JASWANT SINGH,J.
Petitioner-plaintiff, by filing this revision petition under Article
227 of the Constitution of India, has prayed for quashing the order dated
23.9.2008 (Annexure P/2) passed by the learned Additional District Judge,
Karnal, whereby the appeal filed by the respondents-defendants was
allowed and the order dated 30.10.2007 (Annexure P/1) passed by the
learned trial Court granting ad interim injunction in favour of the petitioner-
plaintiff was set aside and the application under Order 39 Rules 1 and 2
CPC filed by the petitioner-plaintiff was dismissed.
Briefly the facts are that petitioner-plaintiff filed a suit for
declaration with consequential relief of possession on the ground that he
was a co-owner in joint possession of about 7 kanals 3 marlas of land in
Village Sangoha, as described in the plaint. The case set up by the
petitioner-plaintiff was that he used to give the suit land on lease to Smt.
Anto Devi, mother of defendants 1 and 2 and in the year 1990 he was in
urgent need of money and therefore, desirous of mortgaging the land instead
CR NO.313/2009 2
of giving it on lease to Smt. Anto Devi. It was further alleged that Smt.
Anto Devi instead of creating a mortgage fraudulently obtained a civil court
decree dated 14.1.1990 in Civil Suit No.12/1990, against the petitioner-
plaintiff, which has also been challenged in the present suit.
Petitioner-plaintiff also filed an application under Order 39
Rules 1 and 2 CPC, seeking ad interim injunction restraining the
respondents-defendants from alienating the suit land.
The suit as well as ad interim injunction application were
contested by respondents-defendants alleging that the petitioner-plaintiff
had suffered a consent decree in favour of father of respondents-
defendants, which had been passed with the consent and knowledge of the
petitioner-plaintiff.
After hearing learned counsel for the parties, learned trial Court
vide order dated 30.10.2007 (Annexure P/1) granted ad interim injunction in
favour of the petitioner-plaintiff, restraining the defendants from alienating
the suit land.
Aggrieved against the same, respondents-defendants filed an
appeal before the learned lower appellate Court.
Learned lower appellate Court, vide impugned order dated
23.9.2008 (Annexure P/2) allowed the appeal and set aside the order dated
30.10.2007 (Annexure P/1) passed by the learned trial Court granting ad
interim injunction in favour of the petitioner-plaintiff. While accepting the
appeal filed by the respondents-defendants, it was found by the learned
lower appellate Court that the decree dated 14.1.1990 had been challenged
by the petitioner-plaintiff after a lapse of 15 years and it was not explained
CR NO.313/2009 3
in the plaint as to when the petitioner-plaintiff came to know about the
alleged fraud played upon him. It was further found that signatures on the
statement on the basis of which consent decree was passed were not denied.
The learned lower appellate Court rejected the stand of the petitioner-
plaintiff that the consent decree had been obtained in the garb of executing
a mortgage deed, on the ground that petitioner had appeared in the Court
alongwith his counsel, made a statement in the Court and suffered a consent
decree, therefore, there existed no prima facie case in his favour.
It was further observed by the learned lower appellate Court
that merely because the respondents-defendants had not effected any
alienation for the last more than 15 years, it could not be said that balance of
convenience had tilted in favour of the petitioner-plaintiff. It was also
found that by restraining respondents-defendants from alienating the suit
land would rather amount to irreparable loss and injury to them and in any
case the principle of lis pendens would be applicable. Accordingly, the
order dated 30.10.2007 (Annexure P/1) passed by the learned trial Court
was set aside and the ad interim injunction application of the petitioner-
plaintiff was dismissed. However, it was made clear that in the document
of alienation, if any, the vendor shall specifically incorporate the fact of
pendency of the present suit and that the alienee/vendee shall be bound by
the decision in the suit.
After hearing the leaned counsel for the petitioner-plaintiff and
perusing the impugned order, in my opinion, the reasoning adopted by the
learned lower appellate Court in declining the grant of ad interim injunction
in favour of petitioner-plaintiff is correct and the impugned order suffers
CR NO.313/2009 4
from no illegality or perversity, warranting interference by this Court in the
present revision petition under Article 227 of the Constitution of India.
Resultantly, the present revision petition fails and is hereby
dismissed.
No costs.
21.1.2009. (Jaswant Singh) joshi Judge