JAGMOHAN BAKSHI Vs. SUMEET ENTERPRISES

JUDGEMENT

(1.) The present revision petition under Article 227 of the Constitution of India has been filed by the defendant No.1-petitioner against the order dtd. 28/5/2021 (Annexure P-1) passed by the Appellate Court dismissing his appeal against the order dtd. 2/4/2021 (Annexure P-2) passed by the Trial Court on an application filed by the plaintiffrespondent No.1 under Order 39 Rules 1 and 2 CPC.

(2.) The brief facts relevant to the present lis are that in 1984 the plaintiff-respondent No.1 applied for an industrial plot in Sector 18, Gurugram. A regular allotment letter was issued in it's favour on 17/3/1986 qua Plot No.49, Sector 18, Gurugram measuring 450 sq. meters. On 8/3/1991 the letter of allotment dtd. 17/3/1986 was cancelled by Haryana Urban Development Authority (HUDA) for nonconstruction and the suit property was resumed. On 2/4/1991 the plaintiff-respondent No.1 approached the civil court for the appointment of an Arbitrator. On 24/11/1992, HUDA allotted the suit property to one M/s Vishal Exports for valuable consideration which is stated to have been duly paid. On 1/2/1994 the Conveyance Deed was also executed in favour of M/s Vishal Exports. On 15/7/1996 M/s Vishal Exports transferred the suit property to one Mohan Gandhi and Harbans Gandhi vide a registered sale deed, transfer fee was also paid to HUDA. On 10/1/2005 the Civil court directed HUDA to appoint an Arbitrator. On 19/2/2007 an arbitral award was passed rejecting the prayer of the plaintiff-respondent No.1 for reallotment. However, the plaintiff-respondent No.1 was directed to make a representation to HUDA for allotment of an alternate plot and HUDA was directed to consider the case sympathetically. The said arbitral award attained finality in as much as the same was not challenged by the plaintiffrespondent No.1. On 4/6/2007 a representation was sent by the plaintiffrespondent No.1 to HUDA requesting for the re-allotment of the same plot. Meanwhile, on 31/5/2018 Mohan Gandhi transferred his share in the suit property in favour of Harbans Gandhi vide a registered deed. On 11/7/2018 Harbans Gandhi transferred his share in the suit property in favour of his son Rahul Gandhi under a registered deed. On 29/10/2018 the defendant No.1-petitioner purchased the suit property from Rahul Gandhi by way of a registered sale deed. On 17/12/2018 the defendant No.1-petitioner was recorded as an owner and was issued a fresh letter of allotment in his favour by HUDA. In 2019 the plaintiff-respondent No.1 filed an execution petition praying for execution of the Award dtd. 19/2/2007. On 20/2/2021 the defendant No.1-petitioner is stated to have commenced construction on the suit property. On 25/3/2021 the present suit was filed by the plaintiff-respondent No.1 for permanent injunction and mandatory injunction. The plaint was accompanied with an application under Order 39 Rules 1 and 2 CPC for inter-alia restraining the defendant No.1-petitioner from raising any construction on the suit property and from creating any third party interests. The Trial Court vide order dtd. 2/4/2021 granted ad interim injunction in favour of the plaintiffrespondent No.1 and directed the parties to maintain status-quo qua alienation and construction over the suit property. The said order was challenged in appeal by the defendant No.1-petitioner and vide the impugned order dtd. 28/5/2021 his appeal was also dismissed.

(3.) Learned counsel for the defendant No.1-petitioner has addressed oral arguments and also filed written submissions. It is contended that the plaintiff-respondent No.1 has based his claim on the doctrine of lis pendens. It is the contention that the defendant No.1-petitioner is a bonafide purchaser for valuable consideration as the earlier vendor had a clear title. It is further the contention that the Courts below have erroneously relied upon the doctrine of lis pendens as envisaged under Sec. 52 of the Transfer of Property Act, 1882 which applies only during the pendency of a suit. It is further the case that the lis came to an end with the passing of award dtd. 19/2/2007 by the Arbitrator. The learned counsel would further contend that in 2019 when the plaintiff-respondent No.1 filed for execution of the award dtd. 19/2/2007, therein also the claim was for the allotment of an alternate plot. The learned counsel has relied upon the judgments in Nirmaljit Singh and Ors. vs. Harnam Singh (Dead) by LRs and Ors. [(1996) 8 SCC 610]; Best Sellers Retail (India) Private Ltd. vs. Aditya Birla Nuvo Ltd. and Ors. [(2012) 6 SCC 792]; Thomson Press (India) Ltd. vs. Nanak Builders and Investors Pvt. Ltd. and Ors. [(2013) 5 SCC 397]; Madhukar Nivrutti Jagtap and Ors. vs. Pramilabai Chandulal Parandekar (dead) through LRs and Ors. [(2020) 15 SCC 731]; and Nirbhay Singh Brar and Anr. vs Jagdeep Singh Dhindsa and Another [CR-1727-2022 decided on 21/7/2022 and affirmed by the Supreme Court vide order dtd. 10/10/2022 passed in SLP No.17132/2022]. The learned counsel for the defendant No.1-petitioner has further argued that the injury caused to the plaintiffrespondent No.1 should not be such which cannot be compensated in monetary terms in case the ad-interim injunction is not granted.