TMI Blog2020 (3) TMI 1452X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore be specifically enforceable only against those defendants who were party to the said agreement. There can be no doubt about the same - In the present case, the sole respondent has obviously not made any such statements in respect of the revision applicants because even as per the agreement on which he relies, it is evident that the said agreement was executed between him and only original defendant Nos. 3, 10, 11 and 19. Thus, there is absolute lack of pleadings and in fact no material to show that any agreement in the present case could be specifically enforced as against the revision applicants. In the impugned order the Court below has accepted this position and at one place it has found that the revision applicants were not signatories to the agreement and, therefore, the agreement could not be enforceable against them and it would be inequitable to enforce specific performance of such contract. The Court below went to the extent of observing that it was almost a practice of fraud on the revision applicants in the present case, that the agreement was null and void as against the revision applicants and the suit could therefore not be decreed against them. It was al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s totaling 29 defendants. The suit properties are agricultural lands in respect of which the respondent No. 1 claims to have entered into an agreement for sale and purchase. It is the case of respondent No. 1 that an agreement dated 30/06/2016, was executed by original defendant Nos. 3,10, 11 and 19 in favour of respondent No. 1, agreeing to sell the property for valuable consideration. It was claimed by respondent No. 1 that earnest money of Rs. 11,00,000/- by way of four cheques was paid by him to the said original defendant Nos. 3, 10, 11 and 19 and that the agreement was specifically signed only by the said four defendants only. It was the case of respondent No. 1 that instead of complying with the requirements of the said agreement, original defendant Nos. 3, 10, 11 and 19 sold the property to a third person, thereby cheating the respondent No. 1, despite the fact that the respondent No. 1 was ready and willing to perform his part of the contract. On this basis, the respondent No. 1 has filed the aforesaid suit for specific performance and permanent injunction. 3. In the aforesaid suit, the revision applicants filed Applications at Exhs.83 and 101, seeking rejection of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been accepted. It is contended that the aforesaid judgment of the Hon'ble Supreme Court is closer on facts and directly applicable to the question that arises in the present case and that, therefore, the Revision Applications deserve to be allowed. Reliance was placed a a full bench judgment of five judges of the Madhya Pradesh High Court in the case of Jabalpur Bus Operators Association and others Vs. State of M.P. and another AIR 2003 MP 81, on the question of precedents and their applicability, to contend that an earlier judgment is binding unless it is explained by subsequent judgments rendered by Benches of equal strength. It is contended that although in the case of Sejal Glass Limited Vs. Navilan Merchants Private Limited (2018) 11 SCC 780 and Madhav Prasad Aggarawal and another Vs. Axis Bank Limited and another (2019) 7 SCC 158, it has been held that the plaint can be rejected as a whole or not at all, the said judgments do not refer to or explain the aforesaid earlier judgment in the case of Church of Christ Charitable Trust (supra), wherein it was held that plaint could be rejected as against some of the defendants. It was contended on behalf of the revision applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no cause of action as against the said defendant for seeking a decree of specific performance and that therefore, the plaint deserved to be rejected as against the first defendant, while it could continue to proceed against the second defendant. It was held in such a situation that it could not be said that defendant No. 1 was seeking rejection of the plaint in part, but the said defendant was seeking rejection of the plaint as a whole against itself, because it did not disclose cause of action and it did not satisfy the requirement of statutory provisions. 10. On the other hand, the judgments of the Hon'ble Supreme Court in the case of Sejal Glass Limited v. Navilan Merchants (P) Ltd. (supra) and Madhav Prasad Aggarwal v. Axis Bank Ltd. (supra), lay down that a plaint could be rejected as a whole and it was not permissible to reject the plaint qua any particular portion of a plaint, including against some of the defendants and continue against others. The said judgments are subsequent, having been rendered in the years 2017 and 2019, but admittedly there is no reference in these subsequent judgments to the aforesaid earlier judgment in the case of Church of Christ C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shape of rule being followed by it for the purpose of consistency and exactness in decisions of Court, unless the Court can clearly distinguish the decision put up as a precedent or is per incuriam, having been rendered without noticing some earlier precedents with which the Court agrees. Full Bench decision in Balbir Singh's case (supra) which holds that if there is conflict of views between the two co-equal Benches of the Apex Court, the High Court has to follow the judgment which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the Act, in our considered opinion, for reasons recorded in the preceding paragraph of this judgment, does not lay down the correct law as to application of precedent and is, therefore, over-ruled on this point. 12. On the basis of the said view taken by the Full Bench of the Madhya Pradesh High Court, it was submitted on behalf of the revision applicants that since the subsequent two judgments of the Hon'ble Supreme Court rendered in the years 2017 and 2019, on which the learned counsel for the contesting respondent placed reliance, neither referred to nor explained the earlier judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Bench. When the matter travelled to this Court, it observed thus: (Indian Oil Corpn. Ltd. case, SCC p. 100, para 8) 8. …..The Division Bench of the High Court in Municipal Corpn., Indore v. Ratnaprabha Dhanda was clearly in error in taking the view that the decision of this Court in Ratnaprabha was not binding on it. In doing so, the Division Bench of the High Court did something which even a later coequal Bench of this Court did not and could not do. 23. In Chandra Prakash v. State of U. P a subsequent Constitution Bench reiterated the view that had already been stated in Raghubir Singh. 24. Thus viewed, Bhooraji was a binding precedent, and when in ignorance of it subsequent decisions have been rendered, the concept of per incuriam would come into play. 13. As noted above a reading of the judgments of the Hon'ble Supreme Court of Benches of co-equal strength in the cases of Church of Christ Charitable Trust Educational Charitable Society v. Ponniamman Educational Trust (supra), Sejal Glass Limited v. Navilan Merchants (P) Ltd. (supra) and Madhav Prasad Aggarwal v. Axis Bank Ltd. (supra) would show that there is neither any reference to nor any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Charitable Trust Educational Charitable Society v. Ponniamman Educational Trust (supra) was not explained or dealt with in the aforesaid subsequent judgments rendered by Benches of co-equal strength of the Hon'ble Supreme Court. On facts, the subsequent judgments of the Hon'ble Supreme Court were not dealing with a case for grant of decree of specific performance. In the case of Sejal Glass Limited v. Navilan Merchants (P) Ltd. (supra), it was claimed that the plaint was to be bifurcated as it did not disclose cause of action against the Directors i.e. defendant Nos. 2 to 4 while the suit could continue against the company i.e., defendant No. 1. The suit was for recovery of specific amount against the defendants and for a direction to the defendants to furnish TDS Certificate. In the backdrop of such facts, the Hon'ble Supreme Court held that the plaint could not be rejected against defendant Nos. 2 to 4 only. 15. In the case of Madhav Prasad Aggarwal v. Axis Bank Ltd. (supra) a Bench of co-equal strength held that the aforesaid judgment in the case of Sejal Glass Limited v. Navilan Merchants (P) Ltd. (supra) was directly on the point. By following the said judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. It is an admitted position that other than the aforesaid defendants, none of the defendants were party to the said agreement dated 30/06/2016. The agreement could therefore be specifically enforceable only against those defendants who were party to the said agreement. There can be no doubt about the same. The rule of pleadings incorporated in Forms 47 and 48 in Appendix A to the Code of Civil Procedure, 1908, specifies the pleadings necessary in a suit seeking specific performance of an agreement. This rule requires specific pleadings with regard to the date on which the plaintiff and the defendant entered into the agreement in question with the original document being annexed to the plaint, and with description of the immovable property in question. Respondent No. 1 i.e., the original plaintiff in the present case, needed to specify in the pleadings in the plaint as regards the details when he entered into agreement for sale of immovable property with the revision applicants herein and how he was seeking a decree of specific performance against the revision applicants. In the present case, the sole respondent has obviously not made any such statements in respect of the revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other hand, the first defendant has prayed for rejection of the plaint as a whole for the reason that it does not disclose a cause of action and not fulfilling the statutory provisions. In addition to the same, it is brought to our notice that this contention was not raised before the High Court and particularly in view of the factual details, the said decision is not applicable to the case on hand. 30) In the light of the above discussion, in view of the shortfall in the plaint averments and statutory provisions, namely, Order 7 Rule 11, Rule 14(1) and Rule 14(2), Form Nos. 47 and 48 in Appendix A of the Code which are statutory in nature, we hold that the learned single Judge of the High Court has correctly concluded that in the absence of any cause of action shown as against the first defendant, the suit cannot be proceeded either for specific performance or for the recovery of money advanced which according to the plaintiff was given to the second defendant in the suit and rightly rejected the plaint as against the first defendant. Unfortunately, the Division Bench failed to consider all those relevant aspects and erroneously reversed the decision of the learned single ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
