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JYOTSNA REWAL DUA, J. –

In a suit instituted by the plaintiff (respondent No.1 herein) seeking specific performance of the contract, both the learned Courts below have passed status quo order as an interim relief to ensure that the ultimate decree is not frustrated by any alienation made during the pendency of the suit. Aggrieved, original defendants No.2 and 3 have moved this petition under Article 227 of the Constitution of India.

2. Heard learned counsel on both sides and considered the case file.

3. Facts.

3(i). A civil suit seeking specific performance of the contract dated 13.03.2015 and in the alternative, for recovery of Rs.16 Lakhs was instituted by respondent No.1 in the year 2018. The suit property consisted of Khata Khatauni No.85/90, 91, Kita 11, measuring 15-12-01 bighas, situated at Mohal Chhipanu, Tehsil Sadar, District Mandi, H.P. There was only one defendant in the civil suit as originally instituted, being Sh. Yadav Kumar. With the allegations that during the pendency of the suit, defendant No.1-Sh. Yadav Kumar had sold the suit land to Smt. Rita Sharma and Smt. Jyoti Walia vide sale deed No.905/2020, dated 02.11.2020, applications were made for their impleadment. These applications were allowed and the aforesaid two persons were impleaded as defendants No.2 and 3 in the civil suit.

3(ii). Respondent No.1-Plaintiff moved an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure (CPC) for restraining the defendants from selling/ alienating/mortgaging or causing any interference in the suit land. The application was withdrawn on 02.12.2021. Subsequently, another application was moved under Section 151 CPC seeking an injunction to restrain the defendants from selling & alienating the suit land and not to create any third-party interest over it.

3(iii). Learned Trial Court vide order dated 19.09.2022, held that the suit was for seeking specific performance of the contract. It was necessary to preserve the property in the state it existed to avoid multiplicity of litigation. Accordingly, the application was allowed and status quo order was passed qua possession, alienation or creating further third-party interest in the suit land.

3(iv). All the three defendants assailed the order passed by the learned Trial Court vide their common appeal instituted on 05.11.2022 before the learned First Appellate Court. Vide its judgment dated 29.11.2022, learned First Appellate Court held that the relief prayed for by the plaintiff (respondent No.1 herein) under Section 151 CPC for restraining the defendants from selling and alienating the suit land or creating any third-party interest will not take away the fact that such relief was covered under Order 39 Rule 1 CPC. Therefore, the same should have been sought under Order 39 Rule 1 CPC and not under Section 151 CPC. Learned First Appellate Court further held that merely because the learned Trial Court had mentioned Section 151 CPC while passing the order, would not mean that the order was passed under Section 151 CPC. The order has to be treated as having been passed under Order 39 CPC, where specific power of restraining the alienation or causing injury to the plaintiff with respect to the suit property has been conferred.

Learned First Appellate Court took cognizance of the facts that:- the existence of the agreement in question had not been disputed by original defendant No.1-Sh. Yadav Kumar; defendant No.1 has also not disputed that the plaintiff had served upon him a notice asking him to execute the registered sale deed; defendant No.1’s case was that the agreement was executed, but no symbolic possession was delivered and that the defendant was ready to execute the sale deed after the partition of the land. In view of the facts projected by executant of the agreement, i.e. defendant No.1-Sh. Yadav Kumar, learned First Appellate Court concurred with the findings of the learned Trial Court that the plaintiff had established a prima facie case for preserving the suit property. Learned First Appellate Court held that the order of status quo was required to be passed in the matter to ensure that ultimate decree to be passed by the Court is not frustrated by any further alienation during the pendency of the suit. Significantly, the above order passed by the learned First Appellate Court has not been assailed by defendant No.1, i.e. the vendor. It is defendants No.2 and 3- Smt. Rita Sharma and Smt. Jyoti Walia, respectively, who have assailed the order passed by the learned First Appellate Court.

4. Learned counsel for the petitioners (defendants No.2 and 3) submitted that the plaintiff (respondent No.1 herein) had instituted the suit only qua 2 bighas of land, therefore, the entire suit land could not have been made subject to the status quo order.

The argument has been noticed only to be rejected. Firstly, as would be apparent from the perusal of the impugned orders passed by the learned Trial Court on 19.09.2022 and by the learned First Appellate Court on 29.11.2022, this aspect had never been raised by the petitioners, i.e. defendants No.2 and 3. Even in this petition, no such contention has been raised. Secondly, learned First Appellate Court has observed that the suit land was joint land. This was so pleaded by defendant No.1 himself. In that view of the matter and in view of the defence taken by defendant No.1 that he was ready to execute the sale deed after the partition of the suit land, there was no other course left for the learned Courts below, but to grant status quo order qua the suit land. The fact cannot be lost sight of that plaintiff (respondent No.1) was seeking specific performance of contract against defendant No.1 and defendant No.1 had sold parts of suit land to defendants No.2 and 3 (petitioners herein) during pendency of the suit proceedings. Defendant No.1 had admitted the execution of the agreement in favour of plaintiff, but his case was that sale deed can be executed only after the partition of the suit land. Balance of convenience and prima facie case existed in plaintiff’s favour. To preserve the suit property and to avoid multiplicity of litigations, the order for maintaining status quo qua possession, alienation or creating further third-party interest in the suit land till the disposal of the suit was just and proper.

5. No other point was urged.

For the foregoing reasons, no case for interference with the impugned orders is made out. The present petition, therefore, lacks merit and is accordingly dismissed alongwith pending miscellaneous application(s), if any.

Petition dismissed.

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