Rajveer Singh and Others v. Naresh Kumar Malhotra & Others)

plaintiff in Original Suit No.810 of 2022 (Rajveer Singh and Others vs. Naresh Kumar Malhotra & Others).

3. In view of the peculiar facts and circumstances of the present case and the order proposed to be passed hereunder, this Court proceeds to decide the instant F.A.F.O. finally on merits with the consent given by counsel for the appellants and the contesting plaintiff-respondents no.1 and 2, without putting notice to proforma respondents no.3 to 10.

4. Memorandum of appeal, appended with the document, evince that plaintiff-respondents no.1 and 2 have filed suit dated

06.05.2022 for specific performance of contract dated 21.10.2019 which was allegedly executed by defendants no.1 to 4 in favour of the plaintiffs for sale consideration amounting Rs.1,30,00,000/-, however, out of that Rs.1,25,75,550/- has been given as an earnest money and remaining consideration money amounting Rs.4,24,450/- was promised to be paid at the time of execution of the sale deed. Along with the plaint, an application for interim injunction (Paper No.6C-2) under Order XXXIX Rule 1 has been filed as well beseeching interim injunction against defendants no.1 to 4 restraining them not to create any third party right over the property in question. During pendency of the suit, defendants no.1 to 4 (respondents no.3/1 to 3/5, 4 and 5 herein) have executed a registered sale deed dated 26.02.2024 in favour of the present appellants who were subsequently arrayed in the cause title of the suit as defendants no.9 and 10 respectively. The trial court, after hearing the parties on interim injunction application (Paper No.6C- 2) and the objection thereon filed on behalf of the defendants (Paper No.66C) has granted interim injunction to maintain status quo with respect to the property in question, vide order impugned order dated 05.02.2025, which is under challenge in the instant F.A.F.O.

5. Learned counsel for the appellants submits that the trial court has returned perverse finding with respect to possession of plaintiff over the property in question, while deciding the prima facie case, whereas as per averments made in the plaint and the copy of agreement to sell dated 21.10.2019, plaintiff was not in possession over the property in question. The trial court has decided all the three ingredients of Order XXXIX Rule 1 C.P.C. in a very perfunctory manner without properly addressing the case of the respective parties. No fair consideration has been given to the grievances of the present appellants (defendants no.9 and 10) who are purchaser pendente lite and came into the possession of property in question on the basis of registered sale deed dated

26.02.2024 which has been executed after obtaining permission for sale from the NOIDA Authority. It is further submitted that map submitted by the present appellants is already sanctioned from the authority concerned and the construction work is in progress on the spot. It is lastly submitted that in case any damage is caused to the plaintiff-respondents, same can be compensated by money only.

6. Learned counsel for plaintiff-respondents no.1 and 2 has contended that plaintiffs had already paid Rs.1,25,75,550/- as an earnest money to the defendants no.1 to 4 which is at stake and, in case, purchaser pendente lite are permitted to change the nature of the land, it would seriously affect to the interest of plaintiffs. In support of his submission, learned counsel for the plaintiff- respondents has cited the case of Maharwal Khewaji Trust (Regd.), Faridkot vs. Baldev Dass reported in (2004) 8 SCC 488.

7. Having considered the rival submissions advanced by learned counsel for the parties and perusal of record, it is manifested that the present appellants are the purchaser pendente lite. At the time of execution of the registered sale deed dated 26.02.2024, executed by defendants no.1 to 4, no interim order exists in favour of the plaintiffs. The appellants came with the specific plea that after securing the permission for sale from the NOIDA Authority, valid sale deed dated 26.02.2024 had been executed in their favour. Having regard to validity of map santioned by authority concerned for certain period of time, appellants have no option but to complete the constructions within that period. There is no averment made in the plaint that plaintiffs are in the possession of property in question on the basis of alleged agreement to sell dated

21.10.2019. However, Relief B, claimed in the plaint, demonstrates that plaintiffs have sought for relief that defendants no.1 to 4 may be restrained from delivering the possession of suit property in favour of third person. Apart from that, copy of the agreement to sell unequivocally disclose that it is an agreement to sell without possession, therefore, it is apparent on the face of record, as available on the Board, that possession of the property in question was never handed over to the plaintiffs pursuant to agreement to sell dated 21.10.2019. Finding returned by the trial court qua possession in favour of the plaintiffs is, prima facie, perverse and beyond the record. Needless to say that fate of the purchasers pendente lite is always subject to the provisions as enunciated under Section 52 of the Transfer of Property Act and the section only postulates a condition that the alienation will in no manner effect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court. The principle underlying Section 52 of the Transfer of Property Act is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. Mere pendency of a suit does not prevent on the parties from dealing with the property constituting the subject matter of suit. Once the purchasers pendente lite have stepped into the shoes of vendors (defendants) and are impleaded in the cause title of the suit, their title and prejudice, if any, cannot be ignored while deciding the three important facets of Order XXXIX Rule 1 C.P.C., to wit, prima facie case, balance of convenience and irreparable loss. Prima facie, it appears that the trial court has decided the interim injunction application (Paper No.6C-2) in a very perfunctory manner without properly considering the respective cases of the parties and without appraisal of record available on Board.

8. It would not be befitting for this Court, at this juncture, to make any comment on the point of irreparable loss and damages inflicted to any party to the suit, inasmuch as with the consent of counsel for contesting parties present, both the parties are being relegated before the trial court to get the interim injunction application decided afresh.

9. In this conspectus, as above, instant F.A.F.O. succeeds at admission stage itself and is allowed. Order impugned dated

05.02.2025 passed by the Civil Judge (Senior Division) in Original Suit No.810 of 2022, deciding the interim injunction application (Paper No.6C-2) and objection thereon (Paper No.66C), is hereby quashed. Interim injunction application is restored to its original number and the parties are relegated before the trial court to get the interim injunction application decided afresh. The trial court is hereby expected to decide the interim injunction application (Paper No.6C-2) and objection thereon (Paper No.66C) in accordance with law, after going through the record on Board and after according due opportunity of hearing to both the parties, expeditiously, preferably within a period of one month from the date of production of certified copy of this order. It is made clear that the trial court shall decide the interim injunction application on its own merits without being influenced with the observations, if any, made by this Court while passing the order of the date. Order Date :- 6.3.2025 VR

plaintiff in Original Suit No.810 of 2022 (Rajveer Singh and Others vs. Naresh Kumar Malhotra & Others).

3. In view of the peculiar facts and circumstances of the present case and the order proposed to be passed hereunder, this Court proceeds to decide the instant F.A.F.O. finally on merits with the consent given by counsel for the appellants and the contesting plaintiff-respondents no.1 and 2, without putting notice to proforma respondents no.3 to 10.

4. Memorandum of appeal, appended with the document, evince that plaintiff-respondents no.1 and 2 have filed suit dated

06.05.2022 for specific performance of contract dated 21.10.2019 which was allegedly executed by defendants no.1 to 4 in favour of the plaintiffs for sale consideration amounting Rs.1,30,00,000/-, however, out of that Rs.1,25,75,550/- has been given as an earnest money and remaining consideration money amounting Rs.4,24,450/- was promised to be paid at the time of execution of the sale deed. Along with the plaint, an application for interim injunction (Paper No.6C-2) under Order XXXIX Rule 1 has been filed as well beseeching interim injunction against defendants no.1 to 4 restraining them not to create any third party right over the property in question. During pendency of the suit, defendants no.1 to 4 (respondents no.3/1 to 3/5, 4 and 5 herein) have executed a registered sale deed dated 26.02.2024 in favour of the present appellants who were subsequently arrayed in the cause title of the suit as defendants no.9 and 10 respectively. The trial court, after hearing the parties on interim injunction application (Paper No.6C- 2) and the objection thereon filed on behalf of the defendants (Paper No.66C) has granted interim injunction to maintain status quo with respect to the property in question, vide order impugned order dated 05.02.2025, which is under challenge in the instant F.A.F.O.

5. Learned counsel for the appellants submits that the trial court has returned perverse finding with respect to possession of plaintiff over the property in question, while deciding the prima facie case, whereas as per averments made in the plaint and the copy of agreement to sell dated 21.10.2019, plaintiff was not in possession over the property in question. The trial court has decided all the three ingredients of Order XXXIX Rule 1 C.P.C. in a very perfunctory manner without properly addressing the case of the respective parties. No fair consideration has been given to the grievances of the present appellants (defendants no.9 and 10) who are purchaser pendente lite and came into the possession of property in question on the basis of registered sale deed dated

26.02.2024 which has been executed after obtaining permission for sale from the NOIDA Authority. It is further submitted that map submitted by the present appellants is already sanctioned from the authority concerned and the construction work is in progress on the spot. It is lastly submitted that in case any damage is caused to the plaintiff-respondents, same can be compensated by money only.

6. Learned counsel for plaintiff-respondents no.1 and 2 has contended that plaintiffs had already paid Rs.1,25,75,550/- as an earnest money to the defendants no.1 to 4 which is at stake and, in case, purchaser pendente lite are permitted to change the nature of the land, it would seriously affect to the interest of plaintiffs. In support of his submission, learned counsel for the plaintiff- respondents has cited the case of Maharwal Khewaji Trust (Regd.), Faridkot vs. Baldev Dass reported in (2004) 8 SCC 488.

7. Having considered the rival submissions advanced by learned counsel for the parties and perusal of record, it is manifested that the present appellants are the purchaser pendente lite. At the time of execution of the registered sale deed dated 26.02.2024, executed by defendants no.1 to 4, no interim order exists in favour of the plaintiffs. The appellants came with the specific plea that after securing the permission for sale from the NOIDA Authority, valid sale deed dated 26.02.2024 had been executed in their favour. Having regard to validity of map santioned by authority concerned for certain period of time, appellants have no option but to complete the constructions within that period. There is no averment made in the plaint that plaintiffs are in the possession of property in question on the basis of alleged agreement to sell dated

21.10.2019. However, Relief B, claimed in the plaint, demonstrates that plaintiffs have sought for relief that defendants no.1 to 4 may be restrained from delivering the possession of suit property in favour of third person. Apart from that, copy of the agreement to sell unequivocally disclose that it is an agreement to sell without possession, therefore, it is apparent on the face of record, as available on the Board, that possession of the property in question was never handed over to the plaintiffs pursuant to agreement to sell dated 21.10.2019. Finding returned by the trial court qua possession in favour of the plaintiffs is, prima facie, perverse and beyond the record. Needless to say that fate of the purchasers pendente lite is always subject to the provisions as enunciated under Section 52 of the Transfer of Property Act and the section only postulates a condition that the alienation will in no manner effect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court. The principle underlying Section 52 of the Transfer of Property Act is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. Mere pendency of a suit does not prevent on the parties from dealing with the property constituting the subject matter of suit. Once the purchasers pendente lite have stepped into the shoes of vendors (defendants) and are impleaded in the cause title of the suit, their title and prejudice, if any, cannot be ignored while deciding the three important facets of Order XXXIX Rule 1 C.P.C., to wit, prima facie case, balance of convenience and irreparable loss. Prima facie, it appears that the trial court has decided the interim injunction application (Paper No.6C-2) in a very perfunctory manner without properly considering the respective cases of the parties and without appraisal of record available on Board.

8. It would not be befitting for this Court, at this juncture, to make any comment on the point of irreparable loss and damages inflicted to any party to the suit, inasmuch as with the consent of counsel for contesting parties present, both the parties are being relegated before the trial court to get the interim injunction application decided afresh.

9. In this conspectus, as above, instant F.A.F.O. succeeds at admission stage itself and is allowed. Order impugned dated

05.02.2025 passed by the Civil Judge (Senior Division) in Original Suit No.810 of 2022, deciding the interim injunction application (Paper No.6C-2) and objection thereon (Paper No.66C), is hereby quashed. Interim injunction application is restored to its original number and the parties are relegated before the trial court to get the interim injunction application decided afresh. The trial court is hereby expected to decide the interim injunction application (Paper No.6C-2) and objection thereon (Paper No.66C) in accordance with law, after going through the record on Board and after according due opportunity of hearing to both the parties, expeditiously, preferably within a period of one month from the date of production of certified copy of this order. It is made clear that the trial court shall decide the interim injunction application on its own merits without being influenced with the observations, if any, made by this Court while passing the order of the date. Order Date :- 6.3.2025 VR