- (1.) THE instant civil revision under Section 115 CPC has been preferred against the order dated 27. 2. 2003 passed by the learned Addl. District Judge No. 1, Alwar in Civil Misc. Appeal No. 68/98 whereby appeal has been allowed and the order granting temporary injunction in favour of the petitioner and against the non-petitioners Nos. 1 and 2 passed by the learned trial Court has been setaside and his application for temporary injunction under Order 39 Rule 1 and 2 r/w Section 151 CPC has been dismissed.
(2.) THE plaintiff filed a suit for specific performance of agreement for sale dated 10. 8. 1982 against the defendant Late Chand Singh (who is now represented by defendant Nos. 3 to 8) with the averments that he sold his khatedari land to him for Rs. 44,000/- out of which he received Rs. 11,000/- as earnest money. THE petitioner further paid him Rs. 3,000/- on 22. 8. 1982, Rs. 22,400/- on 14. 5. 1983 and Rs. 400/- on 2. 2. 1985 against written receipts and the balance amount was to be paid at the time of execution of sale-deed which he agreed to execute on Kartik Sudi 15 Samvat 2040, but he avoided to do so. He gave him a notice in this regard and thereafter filed this suit along with an application for temporary injunction under Order 39 Rule 1 and 2 CPC. THE application was resisted by the non-petitioner defendants but the trial Court issued a temporary injunction on 19. 4. 1990 restraining them from alienating the suit property till the disposal of the suit. It is averred that the defendants deliberately in violation and disobediance of the order of the court sold the land in question to defendant Nos. 1 and 2 on 26. 4. 1991 knowing fully well the factum of temporary injunction having been issued against the vendors. THEreafter, the subsequent purchasers who were impleaded as party to the suit and relief was also amended to the effect that the sale-deed executed during the pendency of the suit inspite of temporary injunction was illegal and not binding on petitioner. It appears that the suit land was then acquired by the U. I. T. Alwar. When the subsequent purchasers tried to get the amount of compensation of the land, petitioner filed another application for temporary injunction for restraining them from receiving amount of compensation from U. I. T. , Alwar. THE trial Court after hearing the parties allowed the application and passed an order to the effect that the defendant non-petitioner Nos. 3 and 4 shall be entitled to receive amount of compensation on their filing a bank guarantee within a period of one month in the sum of Rs. 10 lacs and an undertaking to the effect that in the event of plaintiff petitioner's succeeding in the suit, they shall repay the amount of compensation along with interest @ 24% p. a. to the petitioner and an their failure to file the bank guarantee and undertaking, they shall not be entitled to receive the amount of compensation till disposal of the suit. Aggrieved by the said order they preferred appeal before the learned court below which was allowed and the order of the trial court was setaside vide impugned order. Hence, this revision. I have heard learned counsel for the parties. Learned counsel for the petitioner has contended that the learned court below has committed error of law in over-looking the well settled principles of law. According to him the impugned order is perfunctory and arbitrary. It does not discuss the necessary three conditions for issuing temporary injunction. It has straight-away recorded its conclusion without discussing the materials on record. It has been argued that the first appellate court could not have lightly interferred with the order of the trial Court without giving reasons for disagreement with the view taken by the learned trial Court. It has been submitted that the powers of the appellate Court in respect of interlocutory matters are not co-extensive with the trial court. The first appellate court can interfere with the order of the trial court in very exceptional cases where there is apparent error on record. Learned counsel has then argued that the court is bound to take notice of subsequent events and it can mould the relief accordingly. In this regard reliance has been placed on the case of `ram Niwas Gagar (dead) by L. Rs. vs. Debo Jyoti Das and others' (1) and `jagdish Singh vs. Nathu Singh (2), wherein it has been held by the Apex Court that the court is bound to take notice of the subsequent events and it can mould the relief also. Learned counsel for the non-petitioners has contended that the sale by the defendant Nos. 1 and 2 during the pendency of the suit and operation of order of temporary injunction is not invalidated or rendered a nullity. At the most, vendors may be held liable for penal consequences under Order 39 Rule 2-A CPC. In this regard he has relied upon the case of `dilbara Singh & Ors. vs. Chhaja Singh & another' (3), `lal Chand vs. Sohan Lal & Ors. (4) and `hakim Singh vs. Wasan Singh & Ors. ' In all these authorities it has been held that the sale does not become invalid or nullity even if it has been made in violation of the court order. He has then argued on the strength of the case of `nagubai Ammal and others vs. B. Shama, Rao & Others' (6), that the effect of Section 52 of the Transfer of Property Act is not to wipe out a sale pendente lite altogether but to subordinate it to the rights based on the decree in the suit. The sale pendente lite remains operative between the parties thereto. The words "so as to affect the rights of any other party thereto under any decree or order which may be made therein" used under Sec. 52 of the Transfer of Property Act have been explained and interpreted in this authority. Learned counsel has also argued that the sale- deed made in pursuance to agreement made earlier in time during the pendency of the suit is not hit by the doctrine of lis pendens.
(3.) LEARNED counsel has then strenuously argued that the suit property having been acquired, the agreement of sale has become void due to doctrine of frustration provided under Sec. 56 of the Indian Contract Act as has been held in the case of `piarey Lal vs. Hori Lal' His next contention is that the agreement for sale does not confer any title as held in the case of `sunil Kumar Jain vs. Kishan and others' This apart the agreement in question itself provides categorically that the purchaser would be entitled for double the amount paid in advance if he fails to execute the sale-deed. So as held in `dadarao & Anr. vs. Ramrao & Ors. ' (9), he is entitled to get double the amount paid by him. It is at best a transaction of loan and no specific performance of such an agreement can be claimed. In this regard he has referred to the case of `vinayakappa Suryabhanappa Dahenkar vs. Dulichand Hariram Murarka' His last argument is that the scope of revision is very limited. There is no jurisdictional error in the order impugned and without showing any jurisdictional error the petitioner cannot succeed in this revision. Reliance has been placed on the case of M/s. Bhojraj Kunwarji Oil Mill & Ginning Factory and another vs. Yograjsinha Shankersinha Parihar and others' (11), and `manick Chandra Nandy vs. Debdas Nandy and others' ;