Adcon
Electronics Pvt. Ltd. Vs. Daulat & Anr [2001] Insc 475 (12 September 2001)
Syed
Shah Mohammed Quadri & S.N. Phukan Syed Shah Mohammed Quadri, J.
This
appeal, by special leave, raises an interesting question :
whether
a suit simpliciter for specific performance of contract for sale of immovable
property is a suit for land within clause 12 of Letters Patent of the High
Court of Judicature at Bombay? The appellant is the defendant and
the respondents are the plaintiffs in the suit out of which this appeal arises.
In this judgment the parties will be referred to as they are arrayed in the
trial court.
The
facts lie in a narrow campus and are not in dispute. By an agreement of July
12, 1986 land together building known as Vithal Bhavan, bearing No.6/5 (Block
No.24), South Tukoganj, Indore, M.P., (for short, the suit property) was agreed
to be sold by the defendant to the plaintiffs for a consideration of
Rs.53,75,000/-.
Subsequently
the parties executed a memorandum also in regard to the suit property on August 1, 1987. Disputes arose between the parties
with regard to the performance of the said agreement. The plaintiffs filed Suit
No.1088 of 1989 in the High Court of judicature at Bombay (for short, the High
Court) against the defendant praying, inter alia, for a declaration that
agreement dated July 12, 1986 and memorandum dated August 1, 1987 are
subsisting and binding on the defendant and for a decree of specific
performance of the said agreement and memorandum. The suit was filed with the
leave of the court under clause 12 of the Letters Patent of the High Court of
Judicature of Presidency of Bombay (referred to in this judgment as the Letters
Patent). A learned single Judge of the High Court granted leave on April 4, 1989. The defendant took out chamber
summons No.862 of 1989 in the suit for revocation of the leave granted to the
plaintiffs. The learned single Judge dismissed the chamber summons on January 22, 1990. That order was assailed by the
defendant in L.P.A. No.697 of 1990. A Division Bench of the High Court
dismissed the L.P.A. on July
30, 1990. It is that
order of the Division Bench which is under challenge in this appeal.
Mr. A.K.Chitale,
the learned senior counsel appearing for the defendant (appellant), has argued
that in the agreement there is specific stipulation that the defendant will
hand over possession of the suit property on the execution of the sale deed,
therefore, the suit for specific performance of the agreement would be a suit
for land within the meaning of clause 12 of the Letters Patent. In any event,
submitted the learned counsel, acquisition of title to any immovable property
would also fall within the meaning of suit for land and, therefore, the High
Court erred in not revoking the leave.
Ms. Manik
Karanjawala, the learned counsel who was appearing for the plaintiffs
(respondents), sought permission to withdraw from the case for the reason that
her clients asked her not to appear in the appeal. We permitted her to withdraw
from the case.
Inasmuch
as the plaintiffs remained unrepresented we requested Mr. A.S.Bhasme, Advocate,
to assist the court as amicus curiae. The learned counsel readily accepted the
responsibility and very ably argued the appeal for the plaintiffs. His
contention is that as sub-section (2) of Section 22 of the Specific Relief Act,
1963 directs that relief of possession in addition to specific performance of
the agreement should not be granted by court unless it has been specifically
claimed therefore a suit for specific performance simpliciter in the absence of
a explicit prayer for delivery of possession of the suit property, can not be
treated as a suit for land.
It
will be appropriate to refer to clause 12 of Letters Patent which reads thus :
12.
Original Jurisdiction as to suits.
And We
do further ordain that the said High Court of Judicature at Bombay, in the
exercise of its ordinary original civil jurisdiction, shall be empowered to
receive, try, and determine suits of every description, if, in the case of
suits for land or other immovable property such land or property shall be
situated, or in all other cases if the cause of action shall have arisen,
either wholly, or in case the leave of the Court shall have been first
obtained, in part, within the local limits of the ordinary original jurisdiction
of the said High Court, or if the defendant at the time of the commencement of
the suit shall dwell or carry on business, or personally work for gain, within
such limits; except that the said High Court shall not have such original
jurisdiction in cases falling within the jurisdiction of the Small Cause Court
at Bombay, in which the debt or damage, or value of property sued for does not
exceed one hundred rupees.
Leaving
the words which are not relevant for our purpose the said clause will read as
follows : And We further ordain that the said High Court of Judicature at
Bombay, in the exercise of its ordinary original civil jurisdiction, shall be
empowered to receive, try, and determine suits of every description, if, in the
case of suits for land or other immovable property such land or property shall
be situated, or in all other cases if the cause of action shall have arisen,
either wholly, or in case the leave of the Court shall have been first
obtained, in part, within the local limits of the ordinary original
jurisdiction of the said High Court, or if the defendant at the time of the
commencement of the suit shall dwell or carry on business, or personally work
for gain within such limits.........
Thus,
it is clear that under clause 12 of the Letters Patent, the High Court in
exercise of its ordinary original jurisdiction will have power to receive, try
and determine :
(1) suits
for land or other immovable property if such property is situated within the
local limits of original jurisdiction of the High Court; or
(2) all
other cases
(a) if
the cause of action has arisen wholly within the local limits of the ordinary
original jurisdiction of the High Court;
(b) if
prior leave of the Court has been obtained and the cause of action has arisen
in part within the local limits of the ordinary original jurisdiction of the
High Court; or
(c) if
the defendant dwells or carries on business or personally works for gain within
such limits.
The
learned single Judge while dismissing the chamber summons took the view that so
far as the High Court of Bombay was concerned the law was well settled that
suits for specific performance, even though they might relate to the land, were
not suits for land. On appeal the order of the learned single Judge was
confirmed by the Division Bench opining that the suit for specific performance
of an agreement for sale was not a suit for land.
The
question then arises as to what is meant by suit for land.
This
expression has been interpreted by different High Courts as well as the Federal
Court.
In His
Highness Shrimant Maharaj Yashvantrav Holkar of 353] a Division Bench of the
Bombay High Court held that a suit for specific performance would not fall
within the meaning of that expression. There the suit was filed for specific performance
of an agreement to mortgage certain immovable property. The agreement was made
in Bombay between the parties on January 8, 1883. The Divisional Court held, it had jurisdiction and granted decree. On appeal a
Division Bench referred to an earlier judgment of that court which laid down
that suit for land was a suit which asked for delivery of land to the
plaintiff. The High Court also referred to the view of [I.L.R., 1 Calcutta 249
at p.263] construing that expression to mean, substantially for land -- that is
for the purpose of acquiring title to, or control over, land. It also noticed
the view of a learned single Ghose [I.L.R. (5) Calcutta 82] holding that the
court had no jurisdiction to make a decree in a suit for specific performance.
The Division Bench of the Bombay High Court held that the suit was within the
jurisdiction whether regarded as a suit for specific performance or to enforce
equitable mortgage by deposit of title deeds as a court of equity in England
could entertain it.
Weaving
Mills Co. Ltd. [A.I.R. (37) 1950 Federal Court 83], there is divergence of
opinion among the learned Judges of five-Judge Bench of the Federal Court in
regard to the import of the expression suit for land. Chief Justice Kania
opined, Taking the suit as a whole, one has to consider whether it is for the
purpose of obtaining a direction for possession or a decision on title to land,
or the object of the suit is something different but involves the consideration
of the question of title to land indirectly. Justice Fazl Ali observed, If I
had really felt that I was called upon to decide it, I would have agreed with
the line of cases in which it has been held that, broadly speaking, the
expression suit for land covers the following three classes of suits :
(1) suits
for the determination of title to land;
(2) suits
for possession of land; and
(3) other
suits in which the reliefs claimed, if granted, would directly affect title to
or possession of land. Justice Patanjali Sastri took the view, The words in
question, besides obviously covering claims for recovery of possession or
control of land, are apt to connote also suit which primarily and substantially
seek an adjudication upon title to immovable property or a determination of any
right or interest therein. Justice Mahajan observed, If an attempt is made to
find a comprehensive definition of the phrase, it will eventually be discovered
that it has created further complications.
I
therefore content myself by saying that where the nature of the suit is such
that in substance it involves a controversy about land or immovable property
and the Court is called upon to decide conflicting claims to such property and
a decree or order is prayed for which will bring about a change in the title to
it, that suit can be said to be in respect of land or immovable property; but
where incidentally in a suit, the main purpose of which or the primary object
of which is quite different, some relief has to be given about land, the title
to it not being in dispute in the real sense of the term, then such a suit
cannot fall within the four corners of this expression. He added, In my
opinion, if the suit is for specific performance and a decree for possession of
the land sold is claimed, such a suit would certainly be a suit for land; but
if the suit is simpliciter for specific performance, i.e., for the enforcement
of the contract of sale and for execution of a conveyance, in that event there
can be no good ground for holding that such a suit is a suit for determination
of title to land or that the decree in it would operate on the land. In that
view he expressed his agreement with the decision of the Full Bench of the
Madras High Madras 721 F.B.]. Justice Mukherjea perceived, It seems to me
fairly clear that the expression suit for land occurring in clause 12, Letters
Patent, means a suit which is instituted with the object of establishing claims
regarding title to the property or possession of it.
Whether
or not possession is claimed, if title to any immovable property is to be
directly affected by the result of the decision, the suit would be a suit for
land.
1960
Calcutta 626] a Division Bench of the Calcutta High Court took the view that
the suit for specific performance of the contract to execute and register a
lease with alternative claims for damages is not a suit for land within the
meaning of clause 12 of the Letters Patent.
From
the above discussion it follows that a suit for land is a suit in which the
relief claimed relates to title to or delivery of possession of land or immovable
property. Whether a suit is a suit for land or not has to be determined on the
averments in the plaint with reference to the reliefs claimed therein; where
the relief relates to adjudication of title to land or immovable property or
delivery of possession of the land or immovable property, it will be a suit for
land. We are in respectful agreement with the view expressed by Mahajan.J. in
M/s.Moolji Jaithas case (supra).
In a
suit for specific performance of contract for sale of immovable property containing
stipulation that on execution of the sale deed the possession of the immovable
property will be handed over to the purchaser, it is implied that delivery of
possession of the immovable property is part of the decree of specific
performance of contract. But in this connection it is necessary to refer to
Section 22 of the Specific Relief Act, 1963 which runs :
22.
Power to grant relief for possession, partition, refund of earnest money, etc.
-- (1) Notwithstanding anything to the contrary contained in the Code of Civil
Procedure, 1908, any person suing for the specific performance of a contract
for the transfer of immovable property may, in an appropriate case, ask for –
(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 clause (a) or clause (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 my be just for including a claim for such relief.
It may
be seen that sub-section (1) is an enabling provision. A plaintiff in a suit of
specific performance may ask for further reliefs mentioned in clauses (a) and
(b) thereof. Clause (a) contains reliefs of possession and partition and
separate possession of the property, in addition to specific performance. The
mandate of sub-section (2) of Section 22 is that no relief under clauses (a)
and (b) of sub-section (1) shall be granted by the Court unless it has been
specifically claimed.
Thus
it follows that no court can grant the relief of possession of land or other
immovable property, subject-matter of the agreement for sale in regard to which
specific performance is claimed, unless the possession of the immovable
property is specifically prayed for.
In the
instant case the suit is for specific performance of agreement for sale of the
suit property wherein relief of delivery of the suit property has not been
specifically claimed as such it cannot be treated as a suit for land.
We
cannot also accept the contention of Mr. Chitale that the suit is for
acquisition of title to the land and is a suit for land. In its true sense a
suit simpliciter for specific performance of contract for sale of land is a
suit for enforcement of terms of contract. The title to the land as such is not
the subject-matter of the suit.
In
this view of the matter, we do not find any illegality in the order of the
Division Bench of the Bombay High Court under challenge. The appeal is
dismissed but in the circumstances of the case without costs.
Before
parting with the case we record our appreciation for the assistance rendered by
Mr.A.S.Bhasme, the learned amicus curiae.
.................................................J.
(Syed
Shah Mohammed Quadri) .................................................J.
(S. N.
Phukan) September 12,
2001.
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