TMI Blog2022 (4) TMI 1599X X X X Extracts X X X X X X X X Extracts X X X X ..... elief was not granted in the decree for specific relief - The Defendant in terms of the agreement is bound to handover possession of the land agreed to be sold. The expression at any stage of proceeding is wide enough to allow the Plaintiffs to seek relief of possession even at the appellate stage or in execution even if such prayer was required to be claimed. The judgment debtor in the written statement has admitted that the property is a vacant land and that she has sold other portion in favor of one Lakshmipathy. The stand of the judgment debtor now that the Respondent is in possession of 750 sq. feet would not defeat the right of possession of 2400 sq. feet of an area which she has agreed to sell to the Plaintiffs in respect of which decree was passed. All sales affected, and the construction, if any, raised are subject to lis pendens and no legal or equitable rights arise in favour of the purchasers during the pendency of the proceedings. Therefore, the decree-holders are entitled to actual physical possession of 2400 sq. feet of land which was agreed to be sold to the Appellants. The order passed by the High Court is hereby set aside. The Executable Court shall ensure that su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficient sources to complete the transaction caused the delay and as such this Defendant sold another plot to the same Lakshmipathy and had to discharge the debt in that manner. 5. The learned Trial Court vide order dated 27.11.1985 declined to grant decree for specific performance but granted nominal damages of Rs. 5,000/- to the Appellants and recovery of the amount deposited. The Defendant was given two months' time to pay the entire amount with interest and cost. 6. The High Court in the first appeal decreed the suit as prayed while setting aside the decree passed by the learned Trial Court vide judgment dated 23.11.2001. The Appellants were given time till 31.1.2002 for depositing the balance sale consideration. An intra-court appeal was preferred by the Respondent which was dismissed on 14.9.2006. The Special Leave Petition against the said order was also dismissed on 19.3.2007. 7. The Appellants deposited the balance sale consideration but the Respondent did not come forward to execute the sale deed. Therefore, the representative of the learned Executing Court i.e., learned Principal Sub Judge, Puducherry executed the sale deed on 26.4.2007. The sale deed had the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1950 FC 83 and judgment of this Court reported as Adcon Electronics Pvt. Ltd. v. Daulat and Anr. (2001) 7 SCC 698 to hold that without claiming for delivery of possession in a suit for specific performance, there could not be any such order for possession in terms of Section 22 of the Specific Relief Act, 1963 [For short, the 'Act] . The High Court granted liberty to the Appellants to file a separate suit for possession as per the decree passed. 11. We find that the High Court has completely misdirected itself in accepting the petition Under Article 227 of the Constitution of India and directing the decree-holders to file a suit for possession by misreading the judgments referred to. 12. There was no provision in the Specific Relief Act, 1877 corresponding to Section 22 of the Act. Section 22 came to be part of the Act, in pursuance of the recommendation of Law Commission in its 9th Report submitted on 19th July, 1958. The Law Commission was chaired by Mr. M.C. Setalvad and had members including Mr. S.M. Sikri, Mr. G.S. Pathak and Mr. N.A. Palkhivala. The Law Commission had recommended as under: 35. It will be useful, we think to introduce a Rule which has been now settled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on such terms as may be just for including a claim for such relief. (3) The power of the court to grant relief Under Clause (b) of Sub-section (1) shall be without prejudice to its powers to award compensation Under Section 21. 14. Section 28(3) (4) and Section 55(1)(f) of the Transfer of Property Act, 1882 are also relevant here, which read thus: 28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed.-- (1) xxxx (2) xxxx (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmance is decreed, but now the Court is empowered to provide in the decree itself that upon payment by the Plaintiff of the consideration amount within the time given, the Defendant shall execute the deed and put the Plaintiff in possession. 16. Such provision of the Act had come up for consideration before this Court in Babu Lal v. Hazari Lal Kishori Lal and Ors. (1982) 1 SCC 525 at the instance of a purchaser pendente lite. This Court has explained the expression in an appropriate case appearing in Sub-section (1) of Section 22 of the Act. The Court also examined the question as to whether the relief for possession can be effectively granted to the decree-holders where the property agreed to be conveyed is jointly held by the Defendant with other persons. In such cases, the Plaintiff must claim partition of the property and possession over the share of the Defendant. Hence, relief for possession must be specifically pleaded in these particular cases. This Court held that as against the third person, a decree for possession must be specifically claimed as such a person is not bound by the contract to be enforced. The argument that the Plaintiff must claim possession in a suit for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property as its nature admits. 14. There may be circumstances in which a relief 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 share of the Defendant. It is in such cases that a relief for possession must be specifically pleaded. xxxx 16. ...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 proceeding . 17. The various High Courts had taken a view even before the said judgment of this Court in Babu Lal to hold that relief of possession is inherent in a decree of suit for possession, while examining Section 22 of the Act Reference may be made to a j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holder without specifically claiming relief for possession e.g., whether 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 share of the Defendant.... 4. The principle that the relief for possession is inherent in the relief for specific performance of the contract of sale and that in execution of a decree for specific performance of a contract of sale the decree holder is entitled to possession over the property even if no such relief was specifically claimed in the suit or granted under the decree, was accepted by this Court in Arjun Singh v. Sahu Maharaj Narain AIR 1950 Allahabad 415. 19. In Narayana Pillai Krishna Pillai v. Ponnuswami Chettiar Subbalekshmi Ammal AIR 1978 Kerala 236, the Kerala High Court held that the preponderance of judicial opinion is in favour of the competency of the Executing Court to grant delivery of property even where no such relief is granted by a decree for specific performance of the contract of sale . 20. The Division Bench of Calcutta High Court in a judgment reported as D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecific performance, then it is not necessary to specifically seek such a relief and the bar of Section 22(2) would not be attracted. The Court held as under: 5. ... No doubt Sub-section (2) specifically lays down that no relief Under Clause (a) or Clause (b) of the said Sub-section shall be granted by the Court unless it has been specifically claimed. But it is not always necessary to claim such a relief. The requirement to claim the relief Under Clause (a) or (b) of Section 22(2) is qualified by the Clause in an appropriate case . 'An appropriate case' means a case in which the relief does not necessarily flow from the decree for specific performance of the agreement of sale. If such a relief is ancillary to and necessarily flows from a decree for specific performance then it is not necessary to specifically seek such a relief and the bar of Section 22(2) would not be attracted. If the Defendant is in possession of the property agreed to be sold and the decree directs a specific performance of the agreement of sale, the Defendant is bound to execute the sale deed as per the decree and to put the Plaintiff in possession of the property as contemplated by Section 55(1)(f) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 18. In the instant case the suit is for specific performance of the 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 . 19. 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. 24. The learned Single Bench in the impugned judgment herein has not taken into consideration the judgment of the Madras High Court in Krishnamurthy Gounder v. Venkatakrishnan and Ors. AIR 2012 Madras 105. The said judgment arose on the fact that the Plaintiff filed the suit for Specific Performance of an Agreement of Sale and also for recovery of possession but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would include the proceeding in suit or in appeal and also in execution. The proviso to Sub-section (2) of Section 22 of the Act contemplates that the Court shall, at any stage of the proceedings, allow the Plaintiff to amend the plaint on such terms as may be just for including a claim for such relief. The said proviso makes the provision directory as no penal consequences follow Under Sub-section (2) of Section 22. Therefore, Sub-section (2) of Section 22 is a Rule of prudence to ask for possession in an appropriate case . The appropriate case would not include a suit for specific performance simpliciter but may include a suit for partition or a suit when the decree is to be executed against a transferee. Sub-section (2) cannot be said to be a mandatory provision as the power to claim relief at any stage of the proceeding makes Sub-section (2) directory. Sub-section (2) is a matter of procedure to avoid multiplicity of proceedings. The procedural laws are handmaid of justice and cannot defeat the substantive rights. Reference may be made to M/s. Ganesh Trading Co. v. Moji Ram (1978) 2 SCC 91 wherein it was held as under: 2. Procedural law is intended to facilitate and not to obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute [State of U.P. v. Babu Ram Upadhya AIR 1961 SC 751]. The principle of literal construction of the statute alone in all circumstances without examining the context and scheme of the statute may not serve the purpose of the statute [RBI v. Peerless General Finance Investment Co. Ltd. (1987) 1 SCC 424]. 29. To examine whether a provision is directory or mandatory, one of the tests is that the court is required to ascertain the real intention of the legislature by carefully attending to the whole scheme of the statute. Keeping in view the scheme of the statute, we find that Section 22(2) of the Act is only directory and thus, the decree-holder cannot be nonsuited for the reason that such relief was not granted in the decree for specific relief. 30. The Defendant in terms of the agreement is bound to handover possession of the land agreed to be sold. The expression at any stage of proceeding is wide enough to allow the Plaintiffs to seek relief of possession even at the appellate stage or in execution even if such prayer was required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
