JUDGMENT

Hon'ble Sharad Kumar Sharma, J.

(Via Video Conferencing)

The petitioner in the present writ petition, who is a plaintiff in the civil suit for specific performance, being Suit No.226 of 2016 Vandana Ahuja vs. Jai Chand Goyal, and others had given a challenge to the impugned order dated 24.05.2021, which was passed by the learned Civil Judge (Sr. Div.), Roorkee, District Haridwar; whereby the petitioner's application for preponment of the proceedings being Paper No.84 (C); as well as the application Paper No.85 (C) for directing the parties to maintain status quo, has been rejected.

2. Before dealing with the respective arguments of the counsel for the parties, few relevant facts, which become relevant for consideration by this Court are; that the petitioner/plaintiff, had instituted the suit for specific performance of his agreement for sale on 15.10.2016, which according to him was executed in his favour by respondent nos.1 and 2 on 27.06.2016. While on the other hand the purchasers i.e. respondent nos.3, 4 & 5 from the seller, respondent nos.1 and 2 had contend that they are the purchaser of property in dispute by virtue of the registered sale deed dated 05.10.2016, which was executed by respondent nos.1 and 2 under the strength of agreement for sale dated 12.05.2016, even prior to the institution of the suit for specific performance. Hence, a concluded right stood executed in their favour, prior to filing of the suit for specific performance.

3. The contention of the petitioner has been that during the pendency of the suit and under the strength of sale deed the executed on 05.10.2016 which was executed in favour of respondent nos.3, 4 & 5, respondent nos.3, 4 & 5 were proceeding to change the nature of the property by undertaking the process of demolition and that is why the necessity arose for the petitioner to file the aforesaid applications for preponment of the proceedings of suit and for the grant of an order of status quo. It is not in controversy that at the behest of the petitioner/plaintiff himself, that when he had instituted the suit for specific performance of his agreement for sale dated 27.06.2016, there was a temporary injunction granted by the Trial Court thereby restraining the respondents/defendants, therein from creating any third party interest. He submits that in itself would have refrained the respondent nos.1 and 2 to sell the property in favour of respondent nos.3, 4 & 5 on 05.10.2016.

4. This fact is vehemently opposed by the counsel for subsequent purchaser, Mr. Shobhit Saharia, Advocate, representing respondent nos.3, 4 & 5 (the purchasers) that the said restraint order granted by way of temporary injunction in favour of petitioner from creating third party interest, was passed later on i.e. subsequent to the sale deed executed in their favour on 05.10.2016, because the suit itself for specific performance was instituted by the petitioner on 05.10.2016 and hence, the restraint of creating any further third party interest, would not have barred respondent nos.1 and 2 to sell the property to respondent nos.3, 4 & 5 before filing of the suit or passing of an injunction order.

5. The contention of the petitioner is that since he has already instituted the suit for specific performance, the theory lis pendence on defendant under Section 52 of the Transfer of Property Act, would automatically come into play. There cannot be any doubt about the said preposition, but the said preposition would be only for an act which is undertaken subsequent to the filing of a suit and for not an act, which has taken place prior to its institution. Because here there it is a specific case of respondent/purchaser respondent nos.3, 4 & 5, that the factum of their sale deed happens in their favour to be prior to institution of suit and hence, the principle of lis pendence will not apply so far the rights of respondent nos.3, 4 & 5 are concerned because it stood already crystallised by the sale deed dated 05.10.2016