Dinesh Kumar and Ors. Vs. Anju Mehra and Anr. C.S. No. 35 of 2023 12.03.2025 Present: Mr. R.K. Bawa, Sr. Advocate, with Mr. Ajay Kumar Sharma, Advocate, for the plaintiffs. Ms. Seema K. Guleria, Advocate, for defendants No. 1 and 2. None for defendants No. 3 to 9. OMP No. 265 of 2023 This is an application filed by applicants/plaintiffs under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for short “the Code”), for ad interim injunction against non-applicants/defendants No. 1 and 2, seeking to restrain them from selling, encumbering, changing nature of suit land and creating any third party interest therein till final disposal of the suit. The case of the applicants/plaintiffs is that the suit land has been agreed to be sold by predecessor-in-interest of defendants No. 1 and 2 to applicants/plaintiffs, vide agreement dated 07.08.2014. It is alleged that the agreement was contingent on the condition that rights of the parties arising out of said agreement would be subject to final outcome of Civil Suit No. 4 of 2007 and Civil Suit No. 38 of 2009, pending in the Court of competent jurisdiction. The applicants/plaintiffs have filed a suit for specific performance of aforesaid agreement. It is contended on behalf of the applicants/plaintiffs that they have always been ready and willing to perform their part of contract and they have been forced to file the suit on bonafide apprehension of non-applicants/defendants No. 1 and 2 indulging in activities that may be prejudicial to the rights of the applicants/plaintiffs available qua the suit land. The interim relief has also been sought on the ground that there was a bonafide apprehension that even during the pendency of the suit non-applicants/defendants No. 1 and 2 might alienate, encumber or change nature of the suit land to frustrate the rights of applicants/plaintiffs. The non-applicants/defendants No. 1 and 2 have submitted that the suit of the applicants/plaintiffs is premature. The litigation as referred to in para-5 of the agreement is still continuing and since the outcome of the litigation is yet not known, the applicants/plaintiffs cannot assert any rights under the aforesaid agreement. Learned counsel for the non-applicants/defendants No. 1 and 2 has clarified that the litigation referred to in para-5 of the agreement is at the instance of the family members of non-applicants/defendant No. 1 and 2, who by way of civil suit are seeking their exclusive right over the suit land. It is also clarified that on the date of execution of agreement, the predecessor-in-interest of non-applicants/defendants No. 1 and 2 was recorded co-owners of the suit land and the same position subsists even today. On 27.06.2023, this Court had passed an ex parte interim order in favour of the applicants/plaintiffs and non-applicants/defendants No. 1 and 2 were restrained from selling, encumbering, changing nature of the suit land and creating third party interest. Though, the said order was made operational till the next date of hearing, however, the record reveals that the same was neither modified nor vacated at any stage. It is also not the case of the non-applicants/defendants No. 1 and 2 that during the pendency of the suit they have either alienated or changed nature of the suit land or have created third party interest therein. Their only contention is that since the condition No. 5 of the agreement precludes them from taking any further action, they are not in a position to take final call. Having considered rival submissions of the parties and also after going through the records of the case, I am of the considered view that the applicants/plaintiffs have been able to make out a prima facie case for preservation of the suit property at this stage, when the litigation referred to in para-5 of the agreement is still pending adjudication. It is the case of the applicants/plaintiffs that out of the agreed sale consideration of Rs. 4 Crores, they have already paid a substantial amount of Rs. 3.25 Crores to the non-applicants/defendants No. 1 and 2. They have always been ready and willing to perform their part of contract and are still ready to do so. As per them, as and when the defendants No. 1 and 2 come forward to execute the sale deed, they will not back out and will pay the balance amount of Rs. 75 lacs to the non-applicants/defendants No. 1 and 2 immediately at the time of registration of the sale deed. Since, the substantial amount of Rs. 3.25 Crores is alleged to have been paid by applicants/plaintiffs to non-applicants/defendants No. 1 and 2, the balance of convenience and irreparable loss is also in favour of the applicants/plaintiffs. In such circumstances, the interest of justice demands that the suit property should be preserved so as to protect the rights of applicants/plaintiffs arising out of an agreement dated 07.08.2014, at this stage. Accordingly, the application is allowed. The non-applicants/defendants No. 1 and 2 are restrained from alienating, encumbering, changing nature of suit land or creating third party interest therein, till final disposal of suit. It is clarified that in case of civil suits referred to in para-5 of the agreement are decided against the non-applicants/ defendants No. 1 and 2 before final disposal of the suit, they shall be at liberty to seek modification/vacation of this order. Application is, accordingly, disposed of. ( Satyen Vaidya ) Judge 12th March, 2025 (sushma)