Babu Lal Vs. Hazari Lal Klshori Lal
& Ors [1982] INSC 10 (29 January 1982)
MISRA, R.B. (J) MISRA, R.B. (J) SEN, A.P. (J)
CITATION: 1982 AIR 818 1982 SCR (3) 94 1982
SCC (1) 525 1982 SCALE (1)79
ACT:
Specific Relief Act, sections 22 and 28 read
with section 55 of the Transfer of Property Act, scope of-Section 22 of the
Specific Relief Act enacts a rule of pleading in order to avoid multiplicity of
proceedings-When the court has decreed the suit for specific relief of
execution of the agreement to sale of an immovable property without a separate
prayer for possession in the plaint, the decree is still executable without
recourse to another separate suit for possession-Powers of the High Court to
grant the relief in execution application.
HEADNOTE:
Pursuant to an agreement for sale of certain
plots for Rs. 15, 500 M/s. Hazari Lal Kishori Lal respondent No. 1 along with
respondents 2 to 5 bad paid a sum of Rs. 1500/- as earnest money to respondents
Nos. 6 to 9. The sale deed was to be executed within 15 days of the agreement.
Respondents 6 to 9, however, executed a sale deed in favour of Babu Lal, the
petitioner, in respect of the same property for Rs. 20,000 on 7th August, 1967.
Under the circumstances, respondents 1 to 5 filed a suit (No. 10 of 1968) in the
court of Civil Judge, Aligarh, for specific performance of the contract of
sale. The petitioner resisted the claim on the ground that the sale in his
favour was in pursuance of a prior agreement dated 8th July, 1967. During the pendency of the suit, the petitioner started raising construction on the disputed
plot after demolishing the old one. Respondents 1 to 5 applied for injunction
restraining, the petitioner from doing so. The petitioner, however, gave an
undertaking on 25th March, 1968, before the Trial Court that he was making the
construction at his own peril and would demolish the same and restore the land
to its original position in case the suit of the plaintiffs was decreed. The
trial court dismissed the suit but on appeal the additional District Judge
decreed the suit and in second appeal the High Court confirmed the judgment and
decree of the First Appellate Court and directed the petitioner and respondents
6 to 9 to execute the sale deed in favour of respondents Nos. 1 to 5.
The petitioner,, however, did not handover
possession and remove the construction raised by him despite his undertaking
dated 25th March, 1968. The decree-holders, therefore, applied for execution of
the decree. The judgment-debtor-petitioner filed an objection under section 47
of the Code of Civil Procedure taking all possible pleas to defeat the
execution. His objections were three-fold: (i) The decree was in-executable as
the decree-holders did not claim a relief for possession in the suit itself and
consequently there was no decree for 95 possession with the result that the
application for execution by delivery of possession was liable to be dismissed
in view of section 22 (2) of the Specific Relief Act; (ii) the Urban Land
Ceiling Act having come into force it was incumbent on the decree-holders to
obtain the permission as required under sections 26 and 27 of the Ceiling Act
and in the absence of any such permission the application for execution was not
maintainable; and (iii) the vendors were not impleaded as parties originally
and they were impleaded as parties only after the court had directed the
vendors to execute the sale deed. As the vendors were not parties in the
execution application it was not maintainable and it was not open to the
execution court to implead a person who was not originally impleaded in the
application. The execution court allowed the objection of the judgment debtor
in part inasmuch as it directed the execution of the sale deed in pursuance of
the decree. It, however, refused to grant the relief of possession with the
observation that the remedy of the decree-holders for possession was by means
of a separate suit and not by execution proceedings. Objections (ii) and (iii)
were overruled. The order of the execution court was confirmed in appeal by
they First Additional District Judge, Aligarh, dated 21st of February, 1977.
The High Court allowed the appeal of the decree-holders and modified the order
of the court below to the effect that the decree-holders shall be entitled to
possession also. Hence the petition by special leave by judgment
debtor-petitioner.
Dismissing the petition, the Court.
HELD: 1. A decree for specific performance of
a contract includes everything incidental to be done by one party or another to
complete the sale transaction, the rights and obligations of the parties in
such a matter being governed by section 55 of the Transfer of Property Act.
[103 F-G] Kartik Chandra Pal v. Dibakar Bhattacharjee, A.I.R. 1952 Cal. 362;
Hakim Enayat Ullah v. Khalil Ullah Khan & Anr., A.I.R. 1938 All. 432;
Ranjit Singh v. Kalidasi Devi, 37 Cal. 57; Madanmohan Singh v. Gaja Prasad
Singh, 14 C.L.J. 159; Deonandan Prasad v. Janki Singh, 5 Pat. L.J. 314; Atal
Behary v. Barada Prasad, A.l.R. 1931 Pat. 179; Balmukand v. Veer Chand, A.I.R.
[1954] All. 643; Janardan Kishore v. Girdhari Lal, A.l.R. 1957 Pat. 70l; Subodh
Kumar v. Hiramoni Dasi, A.I.R. 1955 Cal. 267; Mohammed Ali Abdul Chanimomin v. Bishemi
Kom Abdulla Saheb Momin & Anr., A.I.R. 1973 Mysore 131, discussed.
2:1. Section 22 enacts a rule of pleading.
The purpose of section 22 is to avoid multiplicity of suits and to enable the
plaintiff to claim a decree for possession in a suit for specific performance
without being hampered by procedural complications, even though strictly speaking,
the right to possession accrues only when suit for specific performance is
decreed, and empowers the court to provide in the decree itself that upon
payment by the plaintiff of the consideration money within the given time, the
defendant should execute the deed and put the plaintiff in possession.
[104 E-F] 2:2. Though sub-section (2) of
section 22 recognised in clear terms the well-established rule of procedure
that the court should not entertain a claim of 96 the plaintiff unless it has
been specifically pleaded by the plaintiff and proved by him to be legally
entitled to, by its proviso it provides that where the plaintiff has not
specifically claimed appropriate reliefs like possession, partition or separate
possession including the specific performance in his plaint, in the initial
stages of the suit, the court shall permit the plaintiff at any stage of the
proceedings, to include one or more of the said reliefs, by means of an
amendment of the plaint on such terms as it may deem proper. [105 A-C] Mahender
Nath Gupta v. M/s. Moti Ram Rattan Chand & Anr., A.I.R. 1975 Delhi 155;
M/s. Ex-Servicemen Enterprises (P) Ltd. v. Sumey Singh, A.I.R. 1976 Delhi 56;
Rameshwar Nath v. U.P. Union Bank, A.I.R. 1956 All. 586, approved. 2:3. The
expression "in an appropriate case' only indicates that it is not always
incumbent on the plaintiff to claim possession or partition or separate
possession in a suit for specific performance of a contract for the transfer of
the immoveable property. That has to be done where the circumstances demanding
the relief for specific performance of the contract of sale embraced within its
ambit not only the execution of the sale deed but also possession over the
property conveyed under the sale deed. It may not always be necessary for the
plaintiff to specifically claim possession over the property, the relief of
possession being inherent in the relief for specific performance of the
contract of sale. Besides, the proviso to sub-section (2) of section 22
provides for amendment of the plaint on such terms as may be just for including
a claim for such relief "at any stage of the proceedings". [106 G-H,
107 A-B] 2:4. The term "proceedings" is a very comprehensive term and
generally speaking means a prescribed course of action for enforcing a legal
right. It is not a technical expression with a definite meaning attached to it,
but one the ambit of whose meaning will be governed by the statute.
It indicates a prescribed mode in which
judicial business is conducted. The word "proceeding" in section 22
includes execution proceedings also. It is a term giving the widest freedom to
a court of law so that it may do justice to the parties in the case. Execution
is a stage in the legal proceedings. It is a step in the judicial process. It
marks a stage in litigation. It is a step in the ladder. In the journey of
litigation there are various stages. One of them is execution. The Legislature
has given ample power to the court to allow amendment of the plaint at any
stage, including the execution proceedings. In the instant case, the High Court
rightly granted the relief of possession.
[107 C-E, 109 B-C] Rameswar Nath v. Uttar
Pradesh Union Bank, A.I.R. 1956 All. 586; Mahender Nath Gupta v. M/s. Moti Ram
Rattan Chand
A.I.R. 1954 All. 643; M/s. Ex-servicemen
Enterprises (P) Ltd. v. Sumey Singh, A.I.R. 1976 Delhi 56, approved.
3:1. If once the legal position is accepted
that neither a contract for sale nor a decree passed on that basis for specific
performance of the contract gives any right or title to the decree-holder and
the right and the title passes to him only on the execution of the deed of sale
either by the judgment-debtor himself or 97 by the court itself in case he
fails to execute the sale deed, no valuable right can be said to have accrued
to the petitioner judgment-debtor by lapse of time, merely because a decree has
been passed for the specific performance of the contract. The limitation would
start against the decree- holders only after they had obtained a sale in
respect of the disputed property. Section 22 has been enacted . Only for the
purpose of avoiding multiplicity of proceedings which the law courts always
abhor. [109 D-F] 3:2. The only amendment to be made in the plaint was to add a
relief for possession necessitated because of the provisions of section 22,
which is only an enabling provision. In the instant case, the objection of the
petitioner requiring the decree-holders to file a separate suit for possession
is hyper-technical. The execution court has every jurisdiction to allow the
amendment. The mere omission of the High Court to allow an amendment in the
plaint is not so fatal as to deprive the decree-holders of the benefits of the
decree when section 55 of the Transfer of Property Act authorises the
transferee to get possession in pursuance of a sale deed. It was open to the
Court to allow an amendment, on the basis of section 22 indeed, it has allowed
delivery of possession in pursuance of the decree passed in the case. [109 F-G,
H, 110 A-B, E] 3:3. Further, sub-section (3) of section 28 clearly contemplates
that if the purchaser or lessee pays the purchase money or other sum which he
is ordered to pay under the decree, the Court may on application made in the
same suit, award the purchaser or lessee such further relief as he may be
entitled to. Sub-clause (b) of sub-section (3) of section 28 contemplates the
delivery of possession or partition and separate possession of the property on
the execution of such conveyance or lease. Sub-section (4) of section 28 bars
the filing of a separate suit for any relief which may be claimed under section
28. [112 A-C] 3:4. The High Court had amended the decree passed by the first
appellate court and passed a decree for possession not only against the
transferors but also against their transferee, that is, the petitioner. A court
which passes a decree for specific performance retains control over the decree
even after the decree has been passed. Procedure is meant to advance the cause
of justice and not to retard it.
[112 G-H, 113 A] Hungerford Investment Trust
Ltd. v. Haridas Mundhra, & Ors., A.I.R. 1972 S.C. 1826, reiterated.
& CIVIL APPELLATE JURISDICTION : Petition
for Special Leave to Appeal (Civil) No. 7771 of 1981.
From the Judgment and order dated the 2nd
September, 1981 of the Allahabad High Court in Execution second Appeal Nos.
1001 & 1720 of 1977 and Civil Revision No. 1447 of 1978.
98 R.R. Jain for the Petitioner.
Mrs. S. Bhandare for the Respondent.
The Judgment of the Court was delivered by
MISRA J. This is a petition for special leave to appeal against the judgment
and order dated 2nd of September, 1981 passed by the High Court of Judicature
at Allahabad disposing of Execution Second Appeal No. 1001 and 1720 of 1977 and
Civil Revision No. 1447 of 1978. The petition was heard on 7th of December,
1981 at some length and after hearing the counsel for the parties we dismissed
the same for reasons to be recorded later. We Dow proceed to give the reasons.
The present petition is a typical example of
the desperate effort of the judgment debtor to ward off the execution of the
decree till the bailiff knocks at the door.
Respondents Nos. 6 to 9 entered into an
agreement with respondents Nos. 1 to 5 on 30th of July, 1967 for sale of
certain plots situate behind their shop for Rs. 15,500.
Respondents Nos. 1 to 5 had paid a sum of Rs.
1,500 as earnest money pursuant to the agreement. The sale deed was agreed to
be executed within fifteen days of the agreement.
Respondents Nos. 6 to 9, however, executed a
sale deed in favour of the petitioner Babu Lal in respect of the same property
for Rs. 20,000 on 7th of August, 1967 in defiance of the earlier agreement
dated 30th of July, 1967. Under the circumstances respondents Nos. 1 to 5 were
obliged to file a suit which was later on numbered as suite No. 10 of 1968 in
the Court of Civil Judge, Aligarh for specific performance of the contract of
sale. The petitioner resisted the claim on the ground that the sale in his
favour was in pursuance of a prior agreement dated 8th of July, 1967. It
appears that during the pendency of the suit the petitioner started
construction on the disputed plot after demolishing the old construction. The
plaintiffs, therefore, filed an application for an injunction restraining the
petitioner from making any construction. The petitioner, however, gave an
undertaking on 25th of March, 1968 that he was making the construction at his
own peril and would demolish the construction and restore the land to its
original position in case the suit of the plaintiffs was decreed. It appears
that on the undertaking given by the petitioner the application for injunction
was dismissed. The trial court dismissed the suit but on 99 appeal the Addl.
District Judge decreed the suit. In Second Appeal the High Court confirmed the
judgment and decree of the first appellate court with a slight modification
inasmuch as the High Court directed the petitioner and respondent Nos. 6 to 9
to execute the sale deed in favour of the respondents Nos. 1 to 5, to bring it
in line with the decision of the Supreme Court in Lala Durga Prasad & Anr.
v. Lala Deep Chand & Ors. wherein it was held:
"In a suit instituted by a purchaser
against the vendor and a subsequent purchaser for specific performance of the
contract of sale, if the plaintiff succeeds, the proper form of the decree to
be passed is to direct specific performance of the contract between the vendor
and the plaintiff and direct the subsequent transferee to join in the
conveyance so as to pass on the title which resides in him to the
plaintiff." The petitioner, however, did not handover possession and
remove construction raised by him despite his undertaking dated 25th of March,
1968. The decree holders, therefore, applied for execution of thee decree. The
judgment-debtor-petitioner filed an objection under section 47 of the Code of
Civil Procedure taking all possible pleas to defeat the execution. His
objections were three-fold: (1) The decree was inexecutable as the
decree-holders did not claim a relief for possession in the suit itself and
consequently there was no decree for possession. The application for execution
by delivery of possession was liable to be dismissed on this score alone in
view of section 22(2) of the Specific Relief Act. (2) The Urban Land Ceiling
Act having come into force it was incumbent on the decree-holders to obtain the
permission as required under sections 26 and 27 of that Act and in the absence
of any such permission the application for execution was not maintainable (3)
The vendors were not impleaded as parties originally and they were impleaded as
parties only after the court had directed the vendors to execute the sale deed
in Second Appeal. As the vendors were not parties in the execution application
it was not maintainable and it was not open to the execution court to implead a
person who was not originally impleaded in the application. The execution court
allowed the objection 100 of the judgment-debtor in part inasmuch as it
directed the execution of the sale deed in pursuance of the decree. It,
however, refused to grant the relief of possession with the observation that
the remedy of the decree-holders for possession was by means of a separate suit
and not the execution proceedings. The other two objections were, however,
overruled. The order of the execution court was confirmed in appeal by the
First Addl. District Judge, Aligarh dated 21st of February, 1977. This order
gave rise to two appeals, one by the judgment-debtor, being appeal No. 1720 of
1977, and the other by the decree-holders, being execution second appeal No.
1001 of 1977 to the extent the order went against them. There was yet another
revision filed by the judgment-debtor petitioner, being civil revision No. 1447
of 1978 against the order dated 15th of March, 1978 whereby the judgment-debtor
was directed to execute a sale deed in favour of the decree holders without
obtaining permission from the Urban Land Ceiling Authorities under sections 26
and 27 of the Act. The appeal as well as the revision filed by the
judgment-debtor were dismissed while the appeal of the decree-holders was
allowed and the order of the courts below was modified to the effect that the
decree-holders shall be entitled to possession also. The judgment-debtor
petitioner has now come to this Court to seek permission to file an appeal against
the judgment of the High Court dated 2nd of September, 1981.
Only one contention has been raised on behalf
of the petitioner by Mr. Shanti Bhushan, senior counsel, that the High Court
could not grant relief in execution application in excess of and out side the
framework of the prayer by the plaintiffs in the original main suit. As a
second limb to this argument it was further contended that the High Court has
acted in flagrant violation of the provisions of section 22 of the Specific
Relief Act in granting the relief of possession. In substance, the main plank
of the contention of the petitioner is based on section 22 of the Specific
Relief Act. As it stands after amendment of 1963, it reads:
"22(1) Notwithstanding anything to the
contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person
suing for the specific performance of a contract for the transfer of immovable
property may, in an appropriate case, ask for- 101 (a) possession, or partition
and separate possession, of the property, in addition to such performance;
or (b) any other relief to which he may
be-entitled, including the refund of any earnest money or deposit paid or made
by him, in case his claim for specific performance is refused.
(2) No relief under Cl. (a) or Cl. (b) of
sub-section (1) shall be granted by the Court unless it has been specifically
claimed:
Provided that where the plaintiff has not
claimed any such relief in the plaint, the Court shall, at any stage of the
proceeding, allow him to amend the plaint on such terms as may be just for
including a claim for such relief.
(3) The power of the Court to grant relief
under Cl. (b) of sub-section (1) shall be without prejudice to its power to
award compensation under Sec. 21." Mr. Shanti Bhushan was laying emphasis
on sub-section (2) of section 22 to contend that tho plaintiffs having not
claimed any relief for possession in the suit they cannot claim the same relief
at a subsequent stage. According to him, in face of the clear mandate of
sub-section (2) it was not open to the High Court to have allowed the relief of
possession at the execution stage, and in any case without an amendment of the
plant.
The contention at the first flush appears to
be alluring and plausible but on a closer scrutiny it cannot be accepted.
It would be appropriate to refer to the state
of law as it existed prior to the amendment of the Specific Relief Act in 1963.
One view was that the decree-holder does not acquire title or right to recover
possession unless a sale deed is executed, in execution of the decree for
specific performance. In Hakim Enayat Ullah v. Khalil Ullah Khan and Anr a
Division Bench of the Allahabad High Court dealing with the question observed;
102 "A decree for specific performance
only declares the right of the decree-holder to have a transfer of the property
covered by the decree executed in his favour. The decree by itself does not
transfer title.
That this is so is apparent from the fact
that in order to get title to the property the decree-holder has to proceed in
execution in accordance with the provisions of 0.21 of the Code. So long as the
sale deed is not executed in favour of the decree holder either by the
defendant in the suit or by the Court the title to the property remains vested
in the defendant and till the execution of the sale deed the decree-holder has
no right to the possession of the property. It is only the execution of the
sale deed that transfers title to the property." In Kartik Chandra Pal v.
Dibakar Bhattacharjee a Division Bench of the Calcutta High Court, however,
after reviewing a number of reported cases, viz., Ranjit Singh v. Kalidasi
Devi. Madanmohan Singh v. Gaja Prasad Singh, Deonandan Prasad v. Janki Singh,
and Atal Behary v. Barada Prasad, observed;
"It is incontestable that in a suit for
specific performance of contract for the sale of land it is open to the
plaintiff to join in the sale suit two prayers, one for the execution of the
deed of transfer and another for recovery of possession of the land in
question.
We ought to remember in this connection that
no special form of decree in a suit for specific performance is supplied by the
Civil Procedure Code.
Chapter 11, Specific Relief Act, deals with
the various circumstances under which a contract may be enforced specifically
and where it cannot be allowed. When a contract is to be specifically enforced,
it means simply this that when the parties do not agree to perform the contract
mutually the intervention of the Court is required and the Court will do all
such things as the parties would have been bound to do had this been 103 done
without the intervention of the Court. A sale of a property after payment of
the consideration and upon due execution of the deed of sale presupposes and
requires the vendor to put the purchaser in possession of the property. It
cannot be suggested that when a party comes to Court for a specific performance
of a contract he is to be satisfied with simply the execution of the document
on payment of the consideration money. The Court when allowing the prayer for
specific performance vests the executing court with all the powers which are
required to give full effect to the decree for specific performance. By the
decree for specific performance, the court sets out what it finds to be the
real contract between the parties and declares that such a contract exists and
it is for the executing court to do the rest, In may be noticed further that a
decree in a suit for specific performance has been considered to be somewhat in
the nature of preliminary decree which cannot be set out in the fullest detail
all the different steps which are required to be taken to implement the main
portion of the order directing specific performance of the contract. The
executing court is in such a case vested with authority to issue necessary
directions." In Balmukand v. Veer Chand the decree for specific
performance of a contract of sale was silent as to the relief of delivery of
possession even though such relief was claimed in the suit. It was held by the
Allahabad High Court that the executing court was still competent to deliver
the possession. It was further held that it was not necessary in a suit for
specific performance either to separately claim possession nor was it necessary
for the court to pass a decree for possession. A decree for specific
performance of a contract includes everything incidental to be done by one
party or another to complete the sale transaction, the rights and obligations
of the parties in such a matter being governed by section SS of the Transfer of
property Act. In Janardan Kishore v. Girdhari Lal the Patna High Court took the
view that the relief of procession is inherent in a relief for specific
performance of contract for lease, 104 and the court executing a decree for
specific performance of such a contract can grant possession of the property to
the decree-holder even though the decree did not provide for delivery of
possession. In Subodh Kumar v. Hiramoni Dasi the Calcutta High Court took a
similar view that the right to recover possession springs out of the contract
which was being specifically enforced and not as a result of the execution and
completion of the conveyance, and as such the judgment-debtor was bound to
deliver possession to the decree-holder.
In Mohammed Ali Abdul Chanimomin v. Bishemi
Kom Abdulla Saheb Momin Anr the Mysore High Court observed that the liability
to deliver possession for specific performance was necessarily implied in a
decree for specific performance directing the defendant to execute a sale deed
on the principle of clause (f) of sub-section of section 55 of the Transfer of
property Act, according to which the liability to deliver possession arises
immediately upon execution of sale deed unless by agreement the date for
delivery of possession is postponed.
In this state of the law Legislature
intervened and on the basis of the report of the Law Commission enacted section
22 in 1963 as it stands.
Section 22 enacts a rule of pleading. The
Legislature thought it will be useful to introduce a rule that in order to
avoid multiplicity of proceedings the plaintiff may claim a decree for
possession in a suit for specific performance, even though strictly speaking,
the right to possession accrues only when suit for specific performance is
decreed.
The Legislature has now made a statutory
provision enabling the plaintiff to ask for possession in the suit for specific
performance and empowering the court to provide in the decree itself that upon
payment by the plaintiff of the consideration money within the given time, the
defendant should execute the deed and put the plaintiff in possession The
section enacts that a person in a suit for specific performance of a contract
for the transfer of immovable property, may ask for appropriate reliefs,
namely, he may ask for possession, or for partition, or for separate possession
including the relief 105 for specific performance. These reliefs he can claim,
not- withstanding anything contained in the Code of Civil Procedure, 1908, to
the contrary, Sub-section (2) of this section, however, specifically provides
that these reliefs cannot be granted by the Court, unless they have been
expressly claimed by the plaintiff in the suit. Sub-section (2) of the section
recognised in clear terms the well- established rule of procedure that the
court should not entertain a claim of the plaintiff unless it has been
specifically pleaded by the plaintiff and proved by him to be legally entitled
to. The proviso to this sub-section (2), however, says that where the plaintiff
has not specifically claimed these reliefs in his plaint, in the initial stage
of the suit, the court shall permit the plaintiff at any stage of the
proceedings, to include one or more of the reliefs, mentioned above by means of
an amendment of the plaint on such terms as it may deem proper. The only
purpose of this newly enacted provision is to avoid multiplicity of suits and
that the plaintiff may get appropriate relief without being hampered by
procedural complications.
The expression in-sub-section (1) of section
22 'in an appropriate case' is very significant, The plaintiff may ask for the
relief of possession or partition or separate possession 'in an appropriate
case'. As pointed out earlier, in view of order 2, rule 2 of the Code of Civil
Procedure, some doubt was entertained whether the relief for specific
performance and partition and possession could be combined in one suit; one
view being that the cause of action for claiming relief for partition and
possession could accrue to the plaintiff only after he acquired title to the
property on the execution of a sale deed in his favour and since the relief for
specific performance of the contract for sale was not based on the same cause
of action as the relief for partition and possession, the two reliefs could not
be combined in one suit. Similarly, as a case may be visualized where after the
contract between the plaintiff and the defendant the property passed in
possession of a third person. A mere relief for specific performance of the
contract of sale may not entitle the plaintiff obtain possession as against the
party in actual possession of the property. As against him, a decree for
possession must be specifically claimed or such a person is not bound by the
contract sought to be enforced. In a case where exclusive possession is with
the contracting party, a decree for specific performance of the contract of
sale simpliciter without specifically providing for delivery of possession, may
give complete relief to the decree-holder. In order to satisfy the decree
against him completely he, is bound not 106 only to execute the sale-deed but
also to put the property in possession of the decree-holder. This is no
consonance with the provision of section 55 (1) of the Transfer of Property Act
which provides that the seller is bound to give, on being so required, the
buyer or such person as he directs, such possession of the property as its
nature admits.
There may be circumstances in which are life
for possession cannot be effectively granted to the decree- holder without
specifically claiming relief for possession, viz., where the property agreed to
be conveyed is jointly held by the defendant with other persons. In such a case
the plaintiff in order to obtain complete and effective relief must claim
partition of the property and possession over the t share of the defendant. It
is in such cases that a relief for possession must be specifically pleaded.
In the instant case, it is pointed out on
behalf of the petitioner that the possession was not with the respondents Nos.
6 to 9 but was with a third person namely, the petitioner, who was subsequent
purchaser and, therefore.
this was an appropriate case where the relief
for possession should have been claimed by the plaintiff-respondents Nos. 1 to
5.
It may be pointed out that the Additional
Civil Judge had decreed the suit for specific performance of the contract. The
High Court modified decree to the extent that the sale deed was to be executed
by respondents Nos. 6 to 9 together with the petitioner. In short, the decree
was passed by the High Court not only against respondents Nos. 6 to 9 but also
against the subsequent purchaser i.e., the petitioner and thus the petitioner
was himself the judgment debtor and it cannot be said that he was a third
person in possession and, therefore, relief for possession must be claimed The
contention on behalf of the petitioner is that the relief for possession must
be claimed in a suit for specific performance of a contract in all cases'. This
argument ignores the significance of the words 'in an appropriate case'. The
expression only indicates that it is not always incumbent on the plaintiff to
claim possession or partition or separate possession in a suit for specific
performance of a contract for the transfer of the immovable property. That has
to be done where the circumstances demanding the relief for specific
performance of the contract of sale embraced within its ambit not only the
execution of the sale deed but also possession over the property 107 conveyed
under the sale deed. It may not always be necessary for the plaintiff to
specifically claim possession over the property, the relief of possession being
inherent in the relief for specific performance of the contract of sale.
Besides, the proviso to sub-section (2) of
section 22 provides for amendment of the plaint on such terms as may be just
for including a claim for such relief 'at any stage of the proceedings'.
The word 'proceeding' is not defined in the
Act.
Shorter Oxford Dictionary defines it as
"carrying on of an action at law, a legal action or process, any act done
by authority of a court of law; any step taken in a cause by either
party". The term 'proceeding' is a very comprehensive term and generally
speaking means a prescribed course of action for enforcing a legal right. It is
not a technical expression with a definite meaning attached to it, but one the
ambit of whose meaning will be governed by the statute.
It indicates a prescribed mode in which
judicial business is conducted. The word 'proceeding' in section 22 includes execution
proceedings also. In Rameshwar Nath v. Uttar Pradesh Union Bank such a view was
taken. It is a term giving the widest freedom to a court of law so that it may
do justice to the parties in. the case. Execution is a stage in the legal
proceedings. It is a step in the judicial process. It makes a stage in
litigation. It is a step in the ladder. In the journey of litigation there are
various stages. One of them is execution.
In Mahender Nath Gupta v. M/s. Moti Ram
Rattan Chand and Anr the Delhi High Court endorsed the view taken in Balmukand
v. Veer Chand (supra) that where in a suit for specific performance of the
contract for sale relief for possession is not claimed and consequently the
decree passed in the suit contains no relief for delivery of possession.
the court executing the decree is competent
to deliver possession, an order directing delivery of possession being merely
incidental to the execution of the deed of sale. The court however, observed
that on March 1, 1964 Specific Relief Act of 1963 came into force and this Act
altered the law by enacting section 22. It made it necessary for the plaintiff
to ask specifically the relief of possession in suits for specific performance.
The Court, however, held that section 22 of the Specific Relief Act of 1963 had
no appliation to that case as the decree was passed when the old Act was in
force.
The same High Court, however. in M/s.
Ex-Servicemen Enterprises (P) Ltd. v. Sumey Singh considered the effect of
section 22 (2) with its proviso. In that case the decree did not give the
plaintiff the relief of possession. The question arose. Was the Court powerless
to put him in possession of the property though he had a decree for specific
performance in his favour ? The Delhi High Court observed:
"Section 22 enacts a rule of pleading.
The legislature thought it will be useful to introduce a rule that in order to
avoid multiplicity of proceedings the plaintiff may claim a decree for
possession in a suit for specific performance even though strictly speaking the
right to possession accrues only when specific performance is decreed.. The
legislature has now made a statutory provision enabling the plaintiff to ask
for possession in the suit for specific performance and empowering the court to
provide in the decree itself that upon payment by the plaintiff of the
consideration money within the given time the defendant should execute the deed
and put the plaintiff in possession.
In my opinion the proviso gives ample power
to a court to allow the amendment of the plaint even at this stage. The proviso
says that the amendment of the plaint can be allowed "at any stage of the
proceedings" on such terms as may be just for including a claim for
possession where the plaintiff has not claimed such relief in his original
plaint.
The term "proceeding" is a very
comprehensive term and generally speaking means a prescribed course of action
for enforcing a legal right. It is not a technical expression with a definite
meaning attached to it, but one the ambit of whose meaning will be governed by
the statute. It indicates a prescribed mode in which Judicial business is
conducted.
109 The word "proceeding" in
Section 22 in my opinion includes execution proceedings also." The High
Court had relied upon Rameshwar Nath v. UP Union Bank (Supra) for its decision
in this case. We are in complete agreement with the view taken by the Delhi
High Court on this case.
It is thus clear that the Legislature has
given ample power to the court to allow amendment of the plaint at any stage,
including the execution proceedings. In the instant case the High Court granted
the relief of possession and the objection raised on behalf of the petitioner
is that this was not possible at the execution stage and in any case the Court
should have allowed first an amendment in the plaint and then an opportunity
should have been afforded to the petitioner to file an objection.
If once we accept the legal position that
neither a contract for sale nor a decree passed on that basis for specific
performance of the contract gives any right or title to the decree-holder and
the right and the title passes to him only on the execution of the deed of sale
either by the judgment-debtor himself or by the Court itself in case he fails
to execute the sale deed, it is idle to contend that a valuable right had
accrued to the petitioner merely because a decree has been passed for the
specific performance of the contract. The limitation would start against the
decree-holders only after they had obtained a sale in respect of the disputed
property. It is, therefore, difficult to accept that a valuable right had
accrued to the judgment debtor by lapse of time. Section 22 has been enacted
only for the purpose of avoiding multiplicity of proceedings which the law
courts always abhor. F The only amendment to be made in the plaint was to add a
relief for possession necessitated because of the provisions of section 22,
which is only an enabling provision.
There has been a protracted litigation and it
has dragged on practically for about 13 years and it will be really a travesty
of justice to ask the decree-holders to file a separate suit for possession The
objection of the petitioner is hyper-technical. The execution court has every
jurisdiction to allow the amendment. The only difficulty is that instead of
granting a relief of possession the High Court should have allowed an amendment
in the Plaint. The mere 110 omission of the High Court to allow an amendment in
the plaint is not so fatal as to deprive the decree-holders of the benefits of
the decree when section 55 of the Transfer of property Act authorises the
transferee to get possession in pursuance of a sale deed.
As pointed out in the earlier part of the
judgment, the petitioner had started construction and, therefore, the decree-holders
sought to inject him from making construction on the disputed land but they
were lulled by undertaking given by the petitioner that he would demolish the
construction and restore the land to its original position in case the suit for
specific performance was decreed. The undertaking given no doubt is a clever
undertaking, but that might have given an impression to the plaintiff decree
holders that in the event of success of the suit the construction would be
demolished and they would get back possession. Now the judgment-debtor
petitioner seeks to take advantage of the expression used in the undertaking to
contend that he had undertaken only to demolish the construction and restore
the land to its original position.
The contention now raised is that the
petitioner never gave an undertaking to restore back-possession of the disputed
property to the decree-holders. Indeed, Mr. Shanti Bhushan stated before the
Court that he was prepared to get the construction demolished but then stops
short and says that possession could not be delivered to the decree holders
unless there was an amendment in the plaint. We are not prepared to take such a
narrow view of section 22. It was open to the Court to allow an amendment and
the Court on the basis of that section has allowed delivery of possession in
pursuance of the decree passed in the case.
Before closing discussion on this point we
cannot lose sight of section 28 of the Specific Relief Act, 1963, which reads:
"28. (1) Where in any suit a decree for
specific performance of a contract for the sale or lease of immovable property
has been made and the purchase or lease does not, within the period allowed by
the decree or such further period as The Court may allow, pay the
purchase-money or other sum which the Court has ordered him to pay, the vendor
or lessor may apply in the same suit in which the . decree is made, to have the
contract rescinded and on such application the Court may, by order, rescind the
contract 111 either so far as regards the party in default or altogether, as
the justice of the case may require.
(2) Where a contract is rescinded under sub-
section (1) the Court- (a) shall direct the purchaser or the lessee, if he has
obtained possession of the property under the contract, to restore such
possession to the vendor lessor. and (b) may direct payment to the vendor or
lessor of all the rents and profits which have accrued in respect of the
property from the date on which the possession was so obtained by the purchaser
or lessee until restoration of possession to the vendor or lessor, and; if the
justice of the cases so requires, the refund of any sum paid by the vendee or
lessee as earnest money or deposit in connection with the contract.
(3) If the purchaser or lessee pays the
purchase money or other sum which he is ordered to pay under the decree within
the period referred to in sub-section (1), the Court may, on application made
in the same suit, award the purchaser or lessee such further relief as he may
be entitled to, including in appropriate cases all or any of the following
reliefs, namely:
(a) the execution of a proper conveyance or
lease by the vendor or lessor;
(b) the delivery of possession, or partition,
and separate possession, of the property on the execution of such conveyance or
lease.
(4) No separate suit in respect of any relief
which may be claimed under this section shall lie at the instance 112 of a
vendor, purchaser, lessor or lessee, as the case may be " Sub-section (3)
of section 28 clearly contemplates that if the purchaser or lessee pays the
purchase money or other sum which he is ordered to pay under the decree, the
Court may on application made in the same suit, award the purchaser or lessee such
further relief as he may. be entitled to. Sub-clause (b) of sub-section (3) of
section 28 contemplates the delivery of possession or partition and separate
possession of the property on the execution of such conveyance or lease.
Sub-section (4) of section 28 bars the filing of a separate suit for any relief
which may be claimed under this section.
In Hungerford Investment Trust Ltd. v.
Haridas Mundhra and ors. dealing with section 28 (1) of the Specific Relief Act,
1963 this Court observed:
"The Specific Relief Act, 1963, is not
an exhaustive enactment and under the law relating to specific relief a Court
which passes a decree for specific performance retains control over the decree
even after the decree had been passed. Therefore, the Court, in the present
case, retained control over the matter despite the decree and it was open to
the Court, when it was alleged that the party moved against had positively
refused to complete the contract, to entertain the application and order
rescission of the decree if the allegation was proved." The reasoning given
by this Court with regard to the applicability of sub-section (1) of section 28
will equally apply to the applicapability of sub-section (3) of section 28.
This is an additional reason why this Court
should not interfere with the eminently just order of the High Court.
The High Court had amended the decree passed
by the first appellate court and passed a decree for possession not only
against the transferors but also against their transferee, that is, the
petitioner.
Procedure is meant to advance the cause of
justice and not to retard it. The difficulty of the decree-holder starts in
getting 113 possession in pursuance of the decree obtained by him. The
judgment-debtor tries to thwart the execution by all possible objections. In
the circumstances narrated above, we do not find any fault with the order
passed by the High Court.
For the reasons given above the petition for
special leave to appeal must fail and it was accordingly dismissed.
S.R. Petition dismissed.
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