Smt. Vandana Ahuja vs Jai Chand Goyal And Others
2021 Latest Caselaw 2487 UK

                IN HIGH COURT OF UTTARAKHAND
                          AT NAINITAL

                    Writ Petition No.1045 of 2021 (M/S)

Smt. Vandana Ahuja                                                     .....Petitioner

                                           Vs.

Jai Chand Goyal and others                                             ...Respondents


Advocate: Mr. Siddhartha Singh, Advocate for the petitioner.
          Mr. Anshu Kumar, Advocate for respondent nos.1 and 2.
          Mr. Shobhit Saharia, Advocate for respondent nos.3, 4 & 5.

Hon'ble Sharad Kumar Sharma, J.

(Via Video Conferencing)

The petitioner in the present writ petition, who is a plaintiff in the civil suit for specific performance, being Suit No.226 of 2016 Vandana Ahuja vs. Jai Chand Goyal, and others had given a challenge to the impugned order dated 24.05.2021, which was passed by the learned Civil Judge (Sr. Div.), Roorkee, District Haridwar; whereby the petitioner's application for preponment of the proceedings being Paper No.84 (C); as well as the application Paper No.85 (C) for directing the parties to maintain status quo, has been rejected.

2. Before dealing with the respective arguments of the counsel for the parties, few relevant facts, which become relevant for consideration by this Court are; that the petitioner/plaintiff, had instituted the suit for specific performance of his agreement for sale on 15.10.2016, which according to him was executed in his favour by respondent nos.1 and 2 on 27.06.2016. While on the other hand the purchasers i.e. respondent nos.3, 4 & 5 from the seller, respondent nos.1 and 2 had contend that they are the purchaser of property in dispute by virtue of the registered sale deed dated 05.10.2016, which was executed by respondent nos.1 and 2 under the strength of agreement for sale dated 12.05.2016, even prior to the institution of the suit for specific performance. Hence, a concluded right stood executed in their favour, prior to filing of the suit for specific performance.

3. The contention of the petitioner has been that during the pendency of the suit and under the strength of sale deed the executed on 05.10.2016 which was executed in favour of respondent nos.3, 4 & 5, respondent nos.3, 4 & 5 were proceeding to change the nature of the property by undertaking the process of demolition and that is why the necessity arose for the petitioner to file the aforesaid applications for preponment of the proceedings of suit and for the grant of an order of status quo. It is not in controversy that at the behest of the petitioner/plaintiff himself, that when he had instituted the suit for specific performance of his agreement for sale dated 27.06.2016, there was a temporary injunction granted by the Trial Court thereby restraining the respondents/defendants, therein from creating any third party interest. He submits that in itself would have refrained the respondent nos.1 and 2 to sell the property in favour of respondent nos.3, 4 & 5 on 05.10.2016.

4. This fact is vehemently opposed by the counsel for subsequent purchaser, Mr. Shobhit Saharia, Advocate, representing respondent nos.3, 4 & 5 (the purchasers) that the said restraint order granted by way of temporary injunction in favour of petitioner from creating third party interest, was passed later on i.e. subsequent to the sale deed executed in their favour on 05.10.2016, because the suit itself for specific performance was instituted by the petitioner on 05.10.2016 and hence, the restraint of creating any further third party interest, would not have barred respondent nos.1 and 2 to sell the property to respondent nos.3, 4 & 5 before filing of the suit or passing of an injunction order.

5. The contention of the petitioner is that since he has already instituted the suit for specific performance, the theory lis pendence on defendant under Section 52 of the Transfer of Property Act, would automatically come into play. There cannot be any doubt about the said preposition, but the said preposition would be only for an act which is undertaken subsequent to the filing of a suit and for not an act, which has taken place prior to its institution. Because here there it is a specific case of respondent/purchaser respondent nos.3, 4 & 5, that the factum of their sale deed happens in their favour to be prior to institution of suit and hence, the principle of lis pendence will not apply

so far the rights of respondent nos.3, 4 & 5 are concerned because it stood already crystallised by the sale deed dated 05.10.2016.

6. The contention of the petitioner is that in case, in an eventuality if the subsequent purchaser i.e. respondent nos.3, 4 & 5, succeeds in demolishing the property, or changes its nature and if later on the petitioner succeeds in the suit for specific performance, it would further complicate the controversy and hence the injunction order, which was prayed for by way of an application Paper No.85 (C), which has been directed to be considered after service of notice, by the impugned order, required to be preserved and the status of the property ought to be maintained during its pendency. There are three reasons for being not accepting the contention of the learned counsel for the petitioner for grant of order of status quo in the circumstances of the present case.

i. For the reason being that the petitioner's right over the property in question for which he is trying to enforce his rights by instituting the suit for specific performance on 15.10.2016 is based on an alleged, subsequent agreement for sale dated 27.06.2016, meaning thereby the right over the property in favour of the petitioner, has yet to be reckoned in a judicial proceedings, which is to be decided by the Civil Court (Sr. Div.), Roorkee, Haridwar and as such the grant of an order of status quo, as against the principal and true owner, which has been observed on the basis of the sale deed dated 05.10.2016, which was executed in favour of respondent nos.3, 4 & 5, based on a prior agreement for sale deed dated 12.05.2016, no status quo order could have been granted, as such in favour of the petitioner, who has still to purchase the property, which was already sold on 05.10.2016, even much prior to institution of the suit itself.

7. In these eventualities, as far as the petitioner's application, which was directed to be considered after notice to defendants by virtue of impugned order praying for grant of status quo, cannot be considered and it has been rightly postponed to be considered by the learned trial court and hence, this Court too is in agreement with the reasons given by the court below. Apart from that this Court, is also of the opinion that when it is a suit for specific performance, it always relates to either denial or a creation of right by issuing a

decree for execution of a deed or its denial. In a nature of suit which is for specific performance and particularly where there is no claim for the grant of decree of permanent injunction and that too in the circumstances of the present case, where sale deed dated 05.10.2016 was already executed in favour of respondent nos.3, 4 & 5, is not under challenge, no injunction as such could have been granted on the petitioner's application Paper No.85 (C).

8. Hence, in the peculiar facts and circumstances of the case, this Court is not inclined to interfere. Hence, the writ petition lacks merit and the same is accordingly, dismissed.

9. Subsequent to rendering of the judgment, the counsel for the petitioner has observed that the impugned order, which was under challenge it was only notices, which was issued on the application Paper No.85 (C) and the same was not rejected on its own merits. Hence, while declining to entertain the writ petition, it is made clear that the observations given in the impugned order would not prejudice the minds of the Court to decide the application Paper No.85(C) itself on its own merits.

(Sharad Kumar Sharma, J.) 20.07.2021 Arti