Punjab-Haryana High Court
Raj Kumar vs Smt. Kamlesh And Others on 19 July, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
C. R. No. 2112 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : C. R. No. 2112 of 2012 (O&M)
Date of Decision : July 19, 2012
Raj Kumar .... Petitioner
Vs.
Smt. Kamlesh and others .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
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Present : Mr. Raj Kumar Gupta, Advocate
for the petitioner.
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L. N. MITTAL, J. (Oral) :
C. M. No. 9050-C-II of 2012 :
Allowed as prayed for. Main Case :
Plaintiff Raj Kumar, having failed to secure temporary injunction from both the courts below, has approached this Court by way of instant revision petition under Article 227 of the Constitution of India.
Plaintiff-petitioner was tenant over the disputed shop under landlord Mahabir Parshad (since deceased and represented by defendants/respondents). Mahabir Parshad filed ejectment petition under C. R. No. 2112 of 2012 (O&M) 2 Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 against the plaintiff. The same was allowed ex-parte vide order dated 14.10.2005 (Annexure P-1) and plaintiff herein was directed to be ejected from the demised shop.
In the instant suit, the plaintiff has alleged that subsequent to ejectment order dated 14.10.2005 (Annexure P-1), defendants agreed to sell the disputed shop to the plaintiff vide agreement dated 07.02.2006. However, in spite thereof, the defendants filed execution petition for executing ejectment order (Annexure P-1). The plaintiff sought temporary injunction restraining the defendants from doing so during pendency of the suit, which has been instituted for declaration and specific performance of the aforesaid agreement dated 07.02.2006.
Defendants resisted the application for temporary injunction. Alleged agreement to sell dated 07.02.2006, set up by the plaintiff, was denied. It was pleaded to be forged and fabricated document. Defendants claimed their legal right to execute the ejectment order (Annexure P-1).
Learned Civil Judge (Junior Division), Sonepat, vide impugned order dated 12.10.2011 (Annexure P-8), dismissed the plaintiff's application for temporary injunction. Appeal against the said order preferred by the plaintiff has been dismissed by learned Additional District Judge, Sonepat, vide impugned judgment dated 14.03.2012 (Annexure P-10). Feeling aggrieved, plaintiff has filed this revision petition to challenge order C. R. No. 2112 of 2012 (O&M) 3 (Annexure P-8) of the trial court and judgment (Annexure P-10) of the lower appellate court.
I have heard counsel for the petitioner and perused the case file. Counsel for the petitioner vehemently contended that in view of subsequent agreement dated 07.02.2006, defendants have no right to execute the ejectment order (Annexure P-1). It was also contended that there is no limitation period for seeking specific performance of the agreement, when plaintiff-petitioner is already in possession of the suit property. Reliance in support of this contention has been placed on judgment of this Court namely M/s Rachitech Engineering Pvt. Ltd., Faridabad vs. M/s Kundan Steels Pvt. Ltd., Faridabad reported as 2007 (3) R.C.R. (Civil) 182.
I have carefully considered the aforesaid contentions, but the same cannot be accepted.
Even assuming the averments made by the plaintiff to be correct at face value, the plaintiff does not deserve the relief of temporary injunction. According to the alleged agreement dated 07.02.2006, sale deed was to be executed up to 31.03.2006, as submitted by counsel for the petitioner. Consequently, suit for specific performance of the said agreement could be filed within three years thereafter i.e. till 31.03.2009. However, plaintiff has filed this suit for declaration and specific performance of the agreement on 04.04.2011, as mentioned in order C. R. No. 2112 of 2012 (O&M) 4 (Annexure P-8), but said to have been filed in February 2011, according to the counsel for the petitioner. The suit was thus filed long after the expiry of limitation period. The contention, that there is no limitation period for filing the suit for specific performance of the agreement because the plaintiff is in possession of the suit property, cannot be accepted. There is no provision of law or precedent in support of this contention. On the contrary, judgment in the case of M/s Rachitech Engineering (supra) did not lay down any such proposition of law. On the contrary, it has been held in the aforesaid judgment that even if suit for specific performance of an agreement to sell becomes barred by limitation, defendant (prospective vendee) can protect his possession under Section 53-A of the Transfer of Property Act, if he satisfies the conditions thereof. Thus, according to this judgment, defence under Section 53-A of the Transfer of Property Act is not barred, but it cannot be said on the strength of this judgment that even suit for specific performance of the agreement is not barred by limitation.
Counsel for the petitioner also contended that `No Objection Certificate' had to be obtained for execution of sale deed and since defendants had not obtained the same, the plaintiff could not earlier file suit for specific performance of the agreement. The contention is again completely misconceived and devoid of substance. Counsel for the petitioner conceded that the requirement of obtaining NOC is still applicable. Consequently, if the petitioner could file suit in February or C. R. No. 2112 of 2012 (O&M) 5 April 2011 to seek specific performance of the agreement in spite of condition of obtaining NOC, he could also do so within the limitation period. The limitation period is not extended by the said condition.
For the reasons aforesaid, I find no ground to grant temporary injunction to the plaintiff against execution of ejectment order passed by the Rent Controller. Plaintiff has failed to make out necessary ingredients for grant of temporary injunction. Courts below have rightly declined the same to the plaintiff. Impugned orders of the courts below do not suffer from perversity, illegality or jurisdictional error so as to call for interference by this Court in exercise of supervisory power under Article 227 of the Constitution of India.
The revision petition is devoid of merit and is accordingly dismissed in limine.
However, nothing observed herein before shall be construed as expression of opinion on merits of the suit.
July 19, 2012 ( L. N. MITTAL ) monika JUDGE