JUDGMENT :

SANDEEP SHARMA, J.

1. By way of instant application filed under Order XXXIX, rules 1 and 2 read with S.151 CPC, prayer has been made behalf of the applicants/plaintiffs (hereinafter, ‘applicants’) to restrain the non-applicant/defendant from selling, transferring and encumbering the suit property i.e. four storeyed building known as “33, The Mall, Shimla” or leasing out the same during the pendency of the suit. Pursuant to order dated 1.12.2020, whereby this Court, while directing the non-applicant/defendant to maintain status quo qua nature and possession of the suit property directed the nonapplicant/ defendant to file reply to the application, nonapplicant/ defendant has filed the reply. Specific ground with regard to maintainability of the application has been raised on behalf of the non-applicant/defendant.

2. For having bird’s eye of the matter, certain undisputed facts, which may be germane for the proper adjudication of the application are that the applicants filed Civil Suit bearing No. 4080 of 2013, titled Smt. Davinder Parmar vs. Chander Kanta and another, for declaration to the effect that the plaintiffs jointly are owners to the extent of 1/6th share in the four storeyed building known as “33, The Mall, Shimla” and mutation No. 141, dated 27.7.2005 be declared void, illegal and inoperative against the right of the plaintiffs and they be declared in joint possession of the property. Aforesaid suit was filed in the year 2013, but alongwith the plaint, no application under Order XXXIX, rules 1 and 2 CPC seeking therein restraint order, if any, against non-applicant/defendant ever was instituted. After completion of pleadings, court proceeded to frame issues vide order dated 26.10.2015 and thereafter, evidence commenced. On 9.3.2016, plaintiffs’ evidence was closed in the affirmative, as per the statement of learned counsel appearing for the plaintiffs and thereafter, the matter repeatedly was listed for recording evidence of the defendants. While the evidence on behalf of the non-applicant/defendant was being led, an application under Order VIII, rule 1A(3) read with S.151 CPC was filed on behalf of the nonapplicant/ defendant, seeking leave of the court to place on record and prove certain documents. Though the aforesaid application, after completion of pleadings was heard in part on 2.6.2017 but since on 10.11.2017, none appeared on behalf of the plaintiffs, suit having been filed by them was dismissed in default vide order dated 10.11.2017 alongwith all pending applications. Subsequently, in the month of January, 2018, an application under Order IX, rule 9 read with S.151 CPC, was filed on behalf of the applicants/plaintiffs, praying therein for restoration of civil suit dismissed in default on 10.11.2017, alongwith an application under S.5 of Limitation Act, for condonation of delay. Vide order dated 5.7.2018, delay in filing the application bearing OMP No. 14/2018, was condoned, however, this court having taken note of the pleadings adduced on record by respective parties in the aforesaid application for restoration, framed following issues vide order dated 11.9.2018:

“OMP No. 14 of 2018

(i) On the contentious pleadings of the parties, the following issues are framed: i) Whether good, sufficient and adequate cause has been made out by the plaintiff/applicant, for recalling the order, pronounced, on 10.11.2017 ? OPP

(ii) Relief.

Issues are readover and explained to the parties. No other issue arises nor claimed by any of the parties. Now, for plaintiff/applicant’s evidence, on the aforesaid issue, subject to steps being taken, within a week, the matter be listed, on a date to be fixed by the Registry of this Court.”

3. After passing of aforesaid order, evidence commenced in the application for restoration and statement of one AW was recorded. Since, notice issued to Harminder Singh Parmar could not be served on account of his not being available in the country, two weeks’ time was granted to the applicants/pl