Jagdish Kumar And Others vs K.L. Handa And Others on 30 May, 2009

 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
                     C.R. No. 3282 of 2009 (O&M)
                                   Date of decision : May 30, 2009
Jagdish Kumar and others

                                                     Petitioners
                         Versus

K.L. Handa and others
                                                     Respondents

CORAM : HON'BLE MR. JUSTICE A.N. JINDAL

Present:   Mr. N.K. Verma, Advocate
           for the petitioners


A.N. JINDAL, J. (ORAL)

Challenge made in this petition is to the order dated

25.2.2009 passed by District Judge, Patiala accepting the appeal of

the plaintiff-respondents against the order dated 4.2.2008 passed by

Addl. Civil Judge (Sr. Divn.) Rajpura dismissing the application under

Order 39 Rules 1 and 2 read with Section 151 CPC. The reliance is

placed on the agreement dated 23.5.2006 executed between the

parties. As per agreement, the sale was to be effected on 22.9.2006

but on the said date the sale deed could not be executed, however,

the date was extended to 30.10.2006. Despite the fact that the

plaintiff-respondents put in appearance before Sub Registrar on the

stipulated date, the defendant-petitioners did not come forward to

execute the sale deed after making payment of the sale price,

ultimately the suit for specific performance was filed.

Admittedly, agreement dated 23.5.2006 came into

existence between the parties and the sale deed could not be

executed on the date fixed. However, the time was not an essence of
C.R. No. 3282 of 2009 (O&M) 2

the contract.

Learned counsel for the petitioners has contended that

since in view of the principles as laid down under Section 53 of the

Transfer of Property Act, therefore, temporary injunction could not be

granted. While disagreeing with the aforesaid argument, it is

observed that the petitioners paid a substantial sum of Rs. 4,00,000/-

out of the total sum of Rs. 18,51,000/- to the respondents. Both the

Sections i.e. 53 of the transfer of property Act and Order 39 Rules 1

and 2 of the CPC have quite different field and scope. Section 57 of

the Act deals with the principles of lis pendens whereas Order 39

Rules 1 and 2 CPC comes into operation before the sale is effected

and it has been brought over the statute book to preserve the

property in order to avoid alienation, wastage and further damage to

the property so that if the rights as claimed by the party filing the suit

are established, the property could be returned safe to him. In the

present case, if the property changes hands by way of any alienation

then the plaintiff would suffer irreparable loss. As such in order to

avoid further complications and multiplicity of suits, the appellate

Court appears to have taken a right view which can not be interfered

with by this Court at revisional stage.

Dismissed.

However, the trial Court is directed to dispose of the case

within six months.

                                                      (A.N.JINDAL)
30.05.2009                                              JUDGE
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