Jaswant Singh, J.@mdashDefendant no. 2-Builder is before this Court, aggrieved against the order dated 20.03.2013 (P-14) passed by the learned Additional District Judge, Gurgaon whereby the miscellaneous appeal filed by respondent/plaintiff Renu Sharma against the order dated 11.02.2013 (P-13), passed by the learned Additional Civil Judge (Sr. Divn.), Gurgaon dismissing the temporary injunction application under order 39 Rules 1 & 2 CPC, was allowed and consequently the defendants were restrained from alienating the suit property and from changing the nature of the suit property till further orders.
2. In brief, facts of the case are that the plaintiff/respondent Renu Sharma has filed a suit for specific performance of an agreement to sell dated 16.10.2008 against defendant no. 1/respondent Satish Nagar for a land measuring 6 Kanal 12 Marlas. As per the terms of the agreement to sell, the sale consideration was fixed at Rs. 1,01,70,000/- out of which it was stated that Rs. 45,70,000/- was paid as earnest money at the time of entering into agreement to sell. The last date for execution of the sale deed was fixed as 15.12.2008. However, prior to the said date i.e. on 30.11.2008 the plaintiff made a further payment of Rs. 5,00,000/- as earnest money. It was further alleged that on the target date, although plaintiff remained present in the office of Sub Registrar but defendant no. 1 did not turn up to execute the sale deed. In her plaint plaintiff/respondent has given instances to show that she was ready and willing at each and every stage. It was also alleged that now the defendant no. 1 has sold the property to defendant no. 2/petitioner herein vide sale deed dated 28.10.2010 and, therefore, the present suit.
3. Upon notice, petitioner/defendant no. 2 Builder pleaded that the agreement dated 17.10.2008 is a forged and fabricated document and it was further claimed that the property in question was purchased from defendant no. 1 for a total sale consideration of Rs. 2,10,00,000/- without any knowledge of the impugned agreement in favour of the plaintiff. Plea of being a bona fide purchaser for a valuable consideration was also taken by the defendant no. 2/petitioner.
4. After considering the argument of learned Counsel for the parties on application under Order 39 Rules 1 & 2 CPC the learned trial Court dismissed the application by holding that no prima facie case is made out in her favour. It was held that the plaintiff had obtained permission to file a fresh suit on the same cause of action on 9.2.2011 while withdrawing her suit for injunction without disclosing that the present suit for specific performance stood already filed on 23.12.2010 and thus, this fact disentitled the plaintiff from seeking discretionary relief of injunction having come to court with unclean hands. Aggrieved against the same, respondent/plaintiff filed an appeal and the learned Additional District Judge, Gurgaon vide the impugned order allowed the appeal, by inter alia holding that since a huge amount of earnest money has been given by the plaintiff to defendant no. 1, therefore, she has equity in her favour and a prima facie case is made out. Further, by relying upon numerous authorities of the Hon''ble Supreme Court as well as this Court, the Court held that it would be in interest of justice that the nature of the property is preserved till the final decision of the suit. However, it was directed by the learned lower Appellate Court that the trial Court shall dispose of the suit expeditiously.
5. Learned Counsel for the petitioner-builder has vehemently argued that the learned lower Appellate Court has committed grave illegality by restraining the defendants from alienating the suit property and from changing the nature of the suit land because she is entitled at best to claim 1/4th share in the entire property, since the alleged agreement to sell in question relates to undivided and unpartitioned land, which is located in two chunks separated by a road, and was not for selling any specific parcel of land. It has been further argued by the learned Counsel for the petitioner that it is evident from the documents that have been placed on record before this Court that Satish Nagar, defendant no. 1/respondent no. 2 herein had been present before the Sub Registrar for getting the sale deed executed and in fact had even executed the affidavit before the Sub Registrar showing his presence. It has further been argued that the plaintiff/respondent no. 1 had also filed a suit on 17.12.2008 for permanent injunction against respondent no. 2/defendant no. 1 Satish Nagar for restraining him from selling, alienating land in question to any other person. A copy of the plaint has been attached as Annexure P-7. To this suit, Satish Nagar filed his written statement whereby he accepted the execution of the agreement to sell but the remaining averments were denied. A copy of the written statement is also on record as P-8. Although the said suit was pending but there was no entry in the revenue record regarding change of ownership or any dispute regarding the land in question, therefore, consequently the petitioner bought the property on 28.10.2010, vide registered sale deed for a total sale consideration of Rs. 2,10,00,000/-. It has been further argued that during the pendency of the previous suit for injunction itself present Civil Suit No. 543 dated 23.12.2010 was filed by respondent no. 1/plaintiff against the petitioner as well as respondent no. 2 Satish Nagar. A copy of the plaint is also attached as P-10 and the written statement by the petitioner-builder is already attached as Annexure P-11. Thus by relying upon the said documents, learned Counsel for the petitioner has argued that it is the respondent no. 1/plaintiff who has been at fault at each and every stage and in fact her suit itself is not maintainable, being barred by provisions of Order 2 Rule 2 CPC as previous suit was still pending in Court when present suit was filed. To substantiate its plea, learned Counsel for the petitioner has relied upon judgment passed by the Hon''ble Supreme Court in
6. On the other hand, learned Counsel for the respondent no. 1/plaintiff has argued that she has given a considerable amount of Rs. 45,70,000/- to the defendant no. 1-Satish Nagar as earnest money and, therefore, her material rights would be affected if the defendants are not restrained from alienating/raising any type of construction on the suit land as she is a co sharer in each and every parcel of land and, therefore, any change in the nature and character of the property would seriously prejudice her rights at the time of passing of final decree.
7. After hearing learned Counsel for the parties and perusing the paper book, this Court is of the considered view that the petitioner-builder has made out a case for disposing off the petition by preserving the suit land qua the share of the plaintiff/respondent. It is apposite to mention here that on 5.5.2014 this Court had passed the following order:-
Vendee having purchased the entire suit land vide registered sale deed dated 28.10.2010 is in revision aggrieved against the order dated 20.3.2013 (P-14) passed by the learned Additional District Judge, Gurgaon whereby in a suit for specific performance of Agreement to Sell regarding 1/4th share of joint land, the defendants have been restrained from raising any construction in the application under Order 39 Rules 1 and 2 CPC of the plaintiff.
On 20.12.2013 the following order was passed:-
The counsel for the petitioner makes an offer that the respondents shall be at liberty to choose 6 kanals 12 marlas of land which he would claim as a property that shall not be developed or modified or any encumbrance shall not be made so that the petitioner is left at liberty for developing the remaining extent of property instead of having to stall the entire project by virtue of the order of interim injunction granted by the court below.
The parties are present and the counsel for the respondent state that the respondent will make an inspection of the property and report to the court at the next date of hearing the property of her choice. The property that would be kept so vacant until final adjudication in suit.
Adjourned to 24.01.2014.
The respondent will give a notice of time of her proposed visit on any day in the first week of January.
At the time of hearing today, CM No. 8293-CII/2014 has been moved by the respondent-caveator/plaintiff raising objection against the proposal of identifying any portion to the extent of 1/4th share of the joint land to be kept vacant during the pendency of the suit.
Written request has been circulated on behalf of the respondent-caveator qua which an objection has been raised by the counsel for the petitioner regarding not informing in time.
Adjourned to 27.5.2014.
In the meanwhile operation of the impugned order shall remain stayed.
8. A perusal of the order shows that the respondent no. 1/plaintiff is not interested in earmarking/identifying a specific portion to the extent of her alleged share arising out of the agreement to sell in question. Even today, respondent/plaintiff has refused to identify any vacant portion of her choice during the pendency of the suit which would preserve her rights later on, if any, at the time of passing of the decree. As far as the merits of the case is concerned, this Court is of the opinion that the plaintiff/respondent no. 1 has failed to make out any prima facie case in her favour so as to restrain the defendants from alienating and changing the nature and character of the land in question in its entirety, in the light of the submissions made by the petitioner regarding the respondent/plaintiff concededly having made a wrong statement before the trial Court on 9.2.2011 as also the stand of insisting upon the sale of a specific parcel of land not being borne out from the contents of the agreement to sell dated 16.10.2008 (Annexure P-1/T). It is not in dispute that the petitioner-builder has bought the entire property which includes the property mentioned in the agreement to sell dated 16.10.2008 which constitutes a very small portion. The builder had made a fair offer that the respondent no. 1/plaintiff can identify any vacant land of her choice to the extent of the dispute involved and be permitted to raise construction in the remaining land, however, to the utter surprise of this Court, even this fair offer was not accepted by the respondent/plaintiff. It seems that the respondent/plaintiff has devised this method to arm twist the builder into coughing out more money by stalling the entire construction.
9. I am also in agreement with the arguments raised by the learned Counsel for the petitioner that the present suit itself is barred by provisions of Order 2 Rule 2 CPC as the Hon''ble Supreme Court in M/s. Virgo Industries (Eng.) P. Ltd.''s case (supra) has held that if a party files a suit for permanent injunction and subsequently files a suit for specific performance, without withdrawing the previous suit, then subsequent suit is barred by provisions of Order 2 Rule 2 CPC, as the cause of action had accrued to him at the time of filing of the first suit for permanent injunction. Thus, prima facie, the present suit is barred by provisions of Order 2 Rule 2 CPC in view of the authoritative judgment passed by Hon''ble Supreme Court in M/s. Virgo Industries (Eng.) P. Ltd.''s case (supra).
10. In view of the above findings and keeping in mind the interest of justice, this Court hereby modifies the order dated 20.03.2013 (P-14) passed by the learned lower Appellate Court and directs the petitioner-builder to leave any vacant portion of its choice to the extent of 1/4th share of joint land and in the remaining land he can raise construction as well as alienate the same only after the petitioner builder has identified the land by submitting a map as well as details before the trial Court and an undertaking on the above directions by the authorised representative of the petitioner by way of affidavit is also submitted.
11. It is however made clear that any observations made herein above shall have no bearing on the merits of the case.
12. Disposed of accordingly.
