Himachal Pradesh High Court
Date Of Decision: 24.02.2025 vs Vandana Devi & Others on 24 February, 2025
1
2025:HHC:3285
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CMP(M)s No. 72 & 1506 of 2025 in/&
FAO(OS) 03 of 2025
Date of decision: 24.02.2025
_____________________________________________________
Sarla Devi .....Appellant
Versus
Vandana Devi & others ...Respondents
_____________________________________________________
Coram:
The Hon'ble Mr. Justice G.S. Sandhawalia, Chief Justice.
The Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting?1
_____________________________________________________
For the Appellant: Mr. Sudhir Thakur, Senior Advocate
with Mr. Karun Negi, Advocate.
For the respondents: None.
G.S. Sandhawalia, Chief Justice (Oral)
CMP(M)s No. 72 & 1506 of 2025
Keeping in view the averments made in the applications
duly supported by the affidavit of applicant/appellant, we are of the
opinion that sufficient cause has been made out to condone the
delays. Therefore, the delay of 196 days in filing the appeal and the
delay of 66 days in re-filing the appeal is condoned. The
applications stand disposed of.
Whether the reporters of Local Papers may be allowed to see the judgment?
2. The present appeal arises out of the order dated
14.06.2024, passed by the learned Single Judge in OMP No. 52 of
2021 in Civil Suit No. 15 of 2021, wherein the application for ad-
interim injunction restraining the non-applicants/defendants from
transferring and alienating the land in question was dismissed by
applying the principle of lis-pendens and it was ordered that in the
case of transfer of the property in question, the rights of the
plaintiff would not be affected.
3. Counsel for the appellant/plaintiff vehemently
submitted that the plaintiff has paid a sum of Rs. 40,00,000/- in
pursuance to the Agreement to Sell dated 20.11.2019 (Annexure
A-2), whereby the 3rd floor of the building in question alongwith
the roof rights were agreed to be sold to the plaintiff by defendants
No. 1 & 2. It is thus submitted that the alienation of the property
in question as such by defendants No. 3 & 4, who purchased the
property in question vide Sale Deed dated 19.03.2020 during the
pendency of the proceedings, would put the present
appellant/plaintiff in great difficulty and the plaintiff had a right as
such to seek the injunction and balance of convenience as such
was also in her favour and thus, she had prayed for ad-interim
injunction before the learned Single Judge.
4. The learned Single Judge in the impugned order had
noted that no reply was filed on behalf of the vendor/defendants
No. 1 & 2, apparently on account of the fact that the Sale Deed had
already been executed in favour of defendants No. 3 & 4 on
19.03.2020 before the institution of the suit on 16.02.2021. It was
noticed that out of the total sale consideration of Rs. 1,13,81,000/-,
an amount of Rs. 10,00,000/- was paid to defendants No. 1 & 2
vide Cheque dated 12.10.2018 and Rs. 1,12,67,190/- was
transferred in the name of the aforesaid defendants through RTGS
in pursuance to Agreement dated 12.10.2018, which was executed
much before the execution of Agreement to Sell in favour of the
plaintiff.
5. The learned Single Judge thus observed that the
specific performance of the contract could be enforced against the
parties, or against any other person claiming title that has arisen
after the title of the plaintiff. He further observed that in the
present case, even though the sale deed was registered
subsequently to the agreement in favour of the plaintiff, however,
the agreement in favour of defendants No. 3 & 4 was executed
much before the agreement in favour of the plaintiff. He further
held that the plaintiff would not suffer any irreparable loss and
injury which cannot be compensated in terms of money as her
rights would be fully protected by the doctrine of lis pendens while
the defendants No. 3 & 4 would suffer as they would be deprived
of the use of the land and the building to which they were entitled
being the owners.
6. We are in agreement with the findings given by the
learned Single Judge. It is not disputed that by virtue of the Sale
Deed dated 19.03.2020, the whole building has been transferred in
favour of defendants No. 3 & 4, which is subject matter of
challenge in the Civil Suit, also. Thus, a huge amount of
consideration has been paid by defendants No. 3 & 4 and it cannot
be said that balance of convenience lies in favour of the plaintiff
and otherwise also, irreparable loss and injury would be caused to
defendants No. 3 & 4, as they have paid the said amount of
consideration. The payment of Rs. 40,00,000/- paid by the
plaintiff has been appropriated not by defendants No. 3 & 4, but by
defendants No. 1 & 2, who have not chosen even to contest the
application, as they have already alienated the property prior to the
institution of the suit.
7. In such circumstances, if the plaintiff was wronged, it
has been more on account of the act and conduct of defendants No.
1 & 2. The allegations of collusion and knowledge against
defendants No. 3 & 4 would a matter of evidence, which is yet to
come on record in the Civil Suit. By way of the subsequent
agreement dated 14.05.2020, the plaintiff paid the 2 nd installment
and last date for execution of the Sale Deed was extended from
19.05.2020 to 09.11.2020. The alienation as such took place prior
to the last date fixed for execution but before the 2 nd installment
was paid, by the plaintiff/appellant.
8. In such circumstances, it can be safely said that the
learned Single Judge has rightly applied the principle of lis-
pendens instead of grant of injunction and rightly ordered that by
the transfer of the property, no prejudce would be caused to the
plaintiff and her right would not be affected since defendants No. 3
& 4 have invested a huge amount. Thus, we dismiss the present
appeal.
9. Needless to say, that these observations are only for
the propose of dealing with this application and would not affect
the merits of the main case, in any manner.
10. We however, request the learned Single Judge to
consider the request of the learned Counsel for the appellant to
expedite the hearing of the suit, as the plaintiff is a lady who has
spent an amount of Rs. 40,00,000/- and has not been given
possession of the property in question.
11. Accordingly, the appeal is dismissed alongwith
pending application(s), if any.
(G.S. Sandhawalia)
Chief Justice.
February 24, 2025 (Ranjan Sharma)
(hemlata) Judge.
