Punjab-Haryana High Court
Mrs.Rekha Seth vs Vijay Kumar And Another on 29 January, 2009
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
CR No.488 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.488 of 2009
Date of decision: 29.1.2009
Mrs.Rekha Seth ......Petitioner
Versus
Vijay Kumar and another ......Respondent
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
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Present: Mr. Amit Jhanji, Advocate for the petitioner.
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Rakesh Kumar Garg, J.
This is defendant's revision petition challenging the orders dated 4.5.2006 and 28.8.2008 passed by the Civil Judge(Junior Division), Gurgaon and Additional District Judge, Gurgaon respectively whereby the application under Order 39 Rule 1 and 2 read with Section 151 CPC filed by respondent (plaintiff) for ad interim injunction has been allowed and she has been restrained from further alienating the suit property during the pendency of the suit.
As per the averments made in the civil suit by the plaintiff- respondent, the defendant-petitioner agreed to sell property in dispute for a sum of Rs.68,01,370/- vide agreement dated 28.9.2004 and received a sum of Rs.4 lacs as advance of the sale consideration. The case set up by the plaintiff-respondent is that it was agreed that before execution of the sale deed, the petitioner would pay the outstanding amount to Citi Bank within 20 days after the petitioner get the original documents and No Objection Certificate from Citi Bank and intimate the petitioner. It was further stated that the plaintiff-respondent was always willing and ready to perform his part of the agreement and the petitioner never cleared the dues nor obtained the NOC from the Bank, therefore, the plaintiff-respondent CR No.488 of 2009 2 had earlier filed a suit for permanent injunction wherein the respondent had sought relief against the petitioner from alienating the suit property to any other person and during the pendency of said suit, the petitioner objected to the maintainability of the suit and submitted that as per the alleged agreement, the material date for execution and registration of the sale deed was 28.9.2004. Since, the date had expired, the suit is not maintainable in view of the provisions of Section 41(h) of Specific Relief Act. Other objections with regard to jurisdiction etc. were also taken. The suit was amended by the plaintiff converting the same into suit for possession by way of specific performance of the agreement. Along with the suit, the plaintiff-respondent also filed an application under Order 39 Rules 1 and 2 read with Section 151 CPC for grant of ad interim injunction restraining the defendant-petitioner from alienating the suit land.
The Civil Judge, Gurgaon, vide his order dated 4.5.2006 held that the plaintiff was entitled to the grant of ad interim injunction restraining the petitioner from further alienating the property so that the aggrieved vendee may not be involved in protracted litigation.
Appeal filed by the petitioner against the aforesaid order of the trial Court was also dismissed.
Learned counsel for the petitioner has vehemently argued that initially the plaintiff-respondent had filed suit for permanent injunction restraining the defendant-petitioner from alienating the property to any other person instead of filing suit for specific performance of agreement to sell but subsequently, sought an amendment with regard to the suit. Thus, the amendment sought by the respondent was an afterthought and therefore, he has failed to show the prima facie case in his favour and thus, the orders of the Courts below are liable to be set aside.
I have heard learned counsel for the petitioner. However, I find CR No.488 of 2009 3 no merit in the arguments.
It is an admitted case of the parties that initially the plaintiff- respondent filed suit for permanent injunction. The petitioner has taken objection to the maintainability of the same and thereafter, the plaintiff- respondent was allowed to amend his plaint and convert his suit from permanent injunction to suit for specific performance of the agreement to sell in question. Once that is so, the objection raised by the petitioner that the suit is not maintainable, is baseless. The Courts below have granted ad interim injunction restraining the petitioner from further alienation of the suit property in favour of the plaintiff-respondent on appreciation of the facts and circumstances of the case. I do not find any ground to interfere with the discretion exercised by the Courts below in granting the ad interim injunction in favour of the plaintiff.
No merit. Dismissed.
January 29, 2009 (RAKESH KUMAR GARG) ps JUDGE