SBCWP No.9690/2008

Om Singh Vs. Dhirendra

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SBCWP No.9690/2008

Om Singh Vs. Dhirendra

DATE OF ORDER : - 21.1.2009

HON'BLE MR. PRAKASH TATIA, J.

Mr.J. Gehlot,for the petitioner.

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Heard learned counsel for the petitioner.

The petitioner is defendant in the suit filed by the

respondent-plaintiff wherein ad-interim injunction order was

passed by the trial court on 2^nd June, 2007 only restraining

the defendant-petitioner from alienating (from selling) the

property in dispute to anybody. Ultimately, the matter

reached to this Court and as per the order of this Court, the

applicant-petitioner was allowed to let out plots nos. 8 and

9 on rent so that he may earne rent from the said

properties. The said order was passed by this Court only

on 3^rd July, 2008. The petitioner-defendant submitted

another application before the trial court and sought

permission to sell some of the properties involved in the

present litigation, which has been denied by the trial court

vide order dated 24^th Nov., 2008.

According to learned counsel for the petitioner, the

SBCWP No.9690/2008

Om Singh Vs. Dhirendra

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trial court has committed serious error of fact and law in

rejecting the petitioner's application seeking permission to

sell the properties. It is submitted that the petitioner is old

person having age of 67 years and nobody is taking care of

him. Learned counsel for the petitioner relied upon the

judgment of the Hon'ble Apex Court delivered in the case of

Mandali Ranganna & Ors Vs. T. Ramachandra & Ors

reported in 2008 DNJ (SC) 951 wherein while allowing the

prayer for further construction and denying the relief of

demolition of the construction already raised, the Hon'ble

Apex Court in addition to allowing the respondent to carry

out the construction of the building though subject to

ultimate decision of the suit observed that if any third party

interest is created upon completion of the construction, the

deeds in question shall clearly stipulate that the matter is

subjudice and all sales shall be subject to the ultimate

decision of the suit. In view of the above, according to

learned counsel for the petitioner, the sale permission can

be granted to the parties to the suit even with respect to

the property which is subject matter in the suit.

Learned counsel for the petitioner also relied upon the

SBCWP No.9690/2008

Om Singh Vs. Dhirendra

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judgment of this Court delivered in the case of Narain Singh

Vs. Narin Singh & 18 ors reported in RLR 1993(2) 631

wherein in the suit claiming easementary right, this Court

modified the order of the trial court to the extent that

defendants non-applicants in the injunction application are

restrained through temporary injunction for interfering with

the use of 6 ft. wide land situated from South to North

towards Eastern side of Khasra no.1861 from being used as

way and doing so, this Court held that the alienation if

made by the defendants during the pendency of the suit

property excluding the aforesaid way, shall be subject to

final decision of the suit and this fact may be mentioned as

a condition in any deed of transfer that may be executed by

the defendants.

So far as jurisdiction of the court to pass appropriate

order after taking into account the particular facts into

consideration even permitting the sale of the property is

concerned, there is no dispute that if a case is made out,

such permission with reasonable restrictions or condition,

the order can be passed by the Court. Here, in this case,

the contention of the learned counsel for the petitioner is

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Om Singh Vs. Dhirendra

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that the petitioner is old of the age of 67 years and,

therefore, he may be allowed to sell the two of the

properties out of several properties involved in the suit.

The argument is that if the petitioner cannot get the benefit

of his own pr