Punjab-Haryana High Court
Malkit Kaur vs Baldev Singh (Since Deceased) Through ... on 14 November, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:148816
CR-2155-2023 (O&M) 1
120
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-2155-2023 (O&M)
Date of decision : 14.11.2024
MALKIT KAUR ....Petitioner
Versus
BALDEV SINGH (SINCE DECEASED) THROUGH LRS ...Respondents
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present : Mr. Harsh Aggarwal, Advocate
for the petitioner.
Mr. M.L. Saggar, Senior Advocate with
Ms. Armaan Saggar, Advocate
for respondents No.1(a) and 1(b).
PANKAJ JAIN, J. (ORAL)
Plaintiff is in revision aggrieved of orders dated 16th of April,
2022 and 22nd of September, 2021 passed by the Courts below in Civil Suit
No.441/2019 titled as 'Malkit Kaur vs. Baldev Singh' rejecting her
application for interim injunction under Order 39 Rule 1 & 2 CPC.
2. For convenience, the parties hereinafter are referred to by their
original position in the suit i.e. the petitioner as the plaintiff and the
respondents as the defendants.
3. Baldev Singh was admittedly owner of the estate comprising
239 Kanal 8 Marla of land. It was being managed by his son namely
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Hargopal Singh. Hargopal Singh leased 166 Kanal 6 Marla of land in favour
of Pipal Singh and 77 Kanal and 14 Marla in favour of Tarlok Singh. On
18th of November, 2023, Hargopal Singh further entered into an agreement to
sell the land under lease to the respective lessees namely Pipal Singh and
Tarlok Singh. Pipal Singh and Tarlok Singh filed suits for specific
performance. Baldev Singh filed suit for possession. All the three suits
were tried together. The vendees i.e. Pipal Singh and Tarlok Singh
succeeded but only for alternate relief of recovery of money. Suit of Baldev
Singh for possession of land was decreed on 24th of December, 2011.
Admittedly, the said decrees attained finality till Apex Court. The petitioner
herein claims that Baldev Singh entered into an agreement to mortgage the
land in her favour on 11th of October, 2010 i.e. prior to date of the decree i.e.
24th of December, 2011. Plaintiff claims that Baldev Singh handed her
possession of the suit land at the time of execution of the said agreement to
mortgage of land dated 11th of October, 2010.
4. Baldev Singh approached the Court for execution of the decree
dated 24th of December, 2011 on 3rd of March, 2012. During pendency of
execution, Baldev Singh died on 13th of June, 2014. Respondents herein
were impleaded as legal representatives of Baldev Singh. In execution of
the decree, the land in question was attached by Revenue Court on 17th of
August, 2017 wherein the sons of the present petitioner filed application
seeking impleadment as necessary party. The application was dismissed on
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18th of May, 2017. Still further the petitioner filed objections under Order 21
Rule 58 CPC before the Revenue Court which was dismissed vide order
dated 26th of October, 2017. In the interregnum, the petitioner served legal
notice upon the LRs of deceased Baldev Singh asking them to execute the
mortgaged deed in performance of the agreement to mortgage dated 11th of
October, 2010 and, thereafter, preferred the instant suit accompanied by an
application under Order 39 Rule 1 & 2 CPC seeking interim injunction
which stands dismissed vide impugned orders.
5. Counsel for the petitioner while assailing the impugned orders
submits the in terms of the agreement to mortgage dated 11th of October,
2010, the plaintiff/petitioner is in possession of the suit land. The possession
of the petitioner is evident from the electricity bills in her name and, thus, till
the final adjudication of the suit, the plaintiff is entitled to protect her
possession. The Courts below have erred in ignoring the possession of the
plaintiff over the suit land resulting in a perverse order and judgment which
needs to be set aside.
6. Per contra, Mr. Saggar, learned Senior Counsel representing the
respondents submits that from the application filed by the sons of the
plaintiff seeking impleadment in the execution proceedings, it is evident that
the plaintiff/petitioner was never put in possession by Baldev Singh, rather
their source of possession is Pipal Singh, who has already suffered a decree
and is bound to hand-over the possession to the LRs of Baldev Singh. He
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thus submits that whole of the tale put-forth including propounding of
agreement to mortgage dated 11th of October, 2010 is at the behest of Pipal
Singh, who in fact wants to defeat the decree of possession in favour of
Baldev Singh.
7. I have heard counsel for the parties and have gone through
records of the case.
8. In order to succeed in application filed under Order 39 Rule 1 &
2 CPC, the plaintiff is required to prove the three ingredients i.e.:
(a) prima facie case ;
(b) balance of convenience, and
(c) irreparable loss.
9. This Court in the case of 'Ludhiana Improvement Trust vs.
Dinesh Kumar and others' bearing CR No.6696 of 2019 (O&M), while
dealing with afore-said essential consideration while grant of temporary
injunction held as under :
"9. Order XXXIX CPC provides for grant of temporary
injunction. The pre-requisites for decision under Order XXXIX
CPC are as follows :
(i) Prima-facie case :
▪ The applicant must demonstrate a prima facie case,
meaning that there is a reasonable possibility of the
applicant succeeding in the suit.
▪ The merits of the case need not be determined at
this stage. It is sufficient if the applicant shows that
there is a serious question to be tried.
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(ii) Irreparable Injury :
▪ The applicant must show that he would suffer
irreparable injury if the injunction is not granted.
▪ "Irreparable injury" means harm that cannot be
adequately compensated by monetary compensation
or that cannot be undone by subsequent legal
remedies.
(iii) Balance of convenience:
▪ The Court must assess whether the balance of
convenience lies in favour of the applicant.
▪ This means that the Court must consider which
party would suffer greater harm if the injunction
were or were not granted."
10. In order to show prima facie case, the plaintiff relies upon
agreement to mortgage dated 11th of October, 2010 stated to be executed by
Baldev Singh. It is on the strength of the said agreement to mortgage that
the plaintiff asserts possession over the suit land.
11. In the considered opinion of this Court the very fact that Baldev
Singh filed execution petition to execute decree dated 24th of December,
2011 on 3rd of March, 2012 and the fact that the land was attached by the
Revenue Court on 17th of August, 2017 in execution of the decree for
possession in favour of Baldev Singh, is enough to demolish prima facie
case in favour of the plaintiff. There is nothing on record apart from the bald
assertion made by the plaintiff to show as to how the plaintiff claims to be in
possession under Baldev Singh who himself was seeking possession praying
for execution of decree in his favour. How can she claims possession to
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have been handed-over by Baldev Singh. Thus, the Courts below have
rightly found that there exists no prima facie case in favour of the plaintiff.
Apart from the aforesaid fact, the grant of interim injunction in the present
suit will have rippling effect leading to obstruction of fruits of decree in
favour of Baldev Singh, dated 24th of December, 2011 which has attained
finality up to the Supreme Court. Thus, the balance of convenience is also
against the present petitioner/plaintiff. There is nothing on record to show
that the plaintiff will suffer any irreparable loss in view of the fact that this
Court has already found that she has no prima facie case in her favour.
12. In view of above, the present petition is dismissed.
13. Pending application(s), if any, shall also stand disposed off.
November 14, 2024 (Pankaj Jain)
Dpr Judge
Whether speaking/reasoned : Yes
Whether reportable : Yes
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