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2005 DIGILAW 1213 (PNJ)

Bhajan Singh v. Jaswant Singh

2005-11-29

M.M.KUMAR

body2005
Judgment 1. The only question raised in this appeal filed by the defendant-appellants under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) is whether the relief of specific performance of a part of a contract be maintained under sub-section (3) of Section 12 of the Specific Relief Act, 1963 (for brevity the Act) that has been claimed through an amendment of the plaint by the plaintiff-respondent by accepting the same from the date of filing of the suit. 2. Brief facts of the case are that the plaintiff-respondent had filed Civil Suit No. 727 of 7-9-1989 for possession by way of specific performance of the agreement to sell dated 29-2-1988 in respect of land measuring 56 kanals which is fully detailed in the title of the plaint. The rate of the land fixed in the agreement to sell was Rs. 17,000/- per killa. The plaintiff-respondent claimed to have paid Rs. 15,000/- as earnest money out of total sale consideration of Rs. 1,19,000/-. The sale deed was to be executed and registered by 15-6-1988. The land was under mortgage and the mortgage money was to be retained by the plaintiff respondent out of balance amount of Rs. 1,04,000/- to be paid to the mortgagee at the time of redemption. It was further agreed between the parties that in case of default on the part of the plaintiff-respondent the earnest money was to be forfeited and in case of default on the part of defendant-appellants they were to pay back double the amount of earnest money. An additional agreement was executed on 13-6-1988 as the defendant-appellants expressed their inability to execute the sale deed in view of the injunction order granted against them by the Civil Judge in a suit filed by their brother-one Harbhajan Singh, wherein the sale deed was undertaken to be executed and registered on 31-7-1988. The plaintiff-respondent asserted his readiness and willingness to perform his part of the contract. He had sent notice dated 20-3-1989 but the defendant- appellants did not show their willingness to execute the sale deed in spite of the fact that the suit filed by their brother in which stay was granted had been dismissed on 16-8-1989. As a consequence the suit was filed claiming the relief of specific performance of the agreement to sell dated 29-2-1988 as amended on 13-6-1988. In the alternative prayer for recovery of Rs. As a consequence the suit was filed claiming the relief of specific performance of the agreement to sell dated 29-2-1988 as amended on 13-6-1988. In the alternative prayer for recovery of Rs. 30,000/- as a consequential relief of perpetual injunction restraining the defendant-appellants from alienating the suit land in favour of a third party was also made. 3. Defendant-appellants contested the suit denying the execution of the agreement or receipt of Rs. 15,000/- as earnest money. It was further claimed that the plaintiff-respondent is a defaulting party as he did not have the balance sale consideration nor he was ready and willing to perform his part of the contract. It was further claimed that on account of failure of the plaintiff-respondent to purchase the suit land defendant-appellants had entered into another agreement to sell. According to the agreement to sell one-half share of the suit land is to be sold to one Jasraj Kaur and remaining one-half share has to be sold to one Bharpur Singh and Amardip Singh sons of Ajit Singh. It was further claimed that even the possession has been delivered to those persons and that the suit was liable to be dismissed. 4. On 11-1-1992 the suit of the plaintiff- respondent was decreed for specific performance in respect of land measuring 26 kanals 19 marlas @ Rs. 17,000/- per killa and the total sale consideration has been worked out to be Rs. 57,713/- minus the earnest money. The mortgage amount was also to be retained by the plaintiff-respondent to be paid to the mortgagee at the time of redemption. On 3-8-1993 learned lower appellate Court remanded the case back to the trial Court with the directions that the mortgage amount be determined. It was further ordered that the matter be considered afresh by keeping in view Section 12(3) of the Act. After remand the plaintiff-respondent was allowed to amend the plaint and additional issues were framed which read as under :- "8(a) If execution of the agreement is proved and less land is found whether in that case plaintiff is entitled for specific performance of lesser area? If so to what effect? OPP. 1(b) Whether the suit is barred by time? OPD." 5. On 4-5-1994 the trial Court again decreed the suit in favour of plaintiff-respondent by determining the mortgage amount to a sum of Rs. 7,000/-. If so to what effect? OPP. 1(b) Whether the suit is barred by time? OPD." 5. On 4-5-1994 the trial Court again decreed the suit in favour of plaintiff-respondent by determining the mortgage amount to a sum of Rs. 7,000/-. On the other additional issue the prayer of the plaintiff-respondent for specific performance of the agreement dated 29-2-1988 as amended on 13-6-1988 was declined because the claim made by amendment was held to be barred by time and the alternative relief of recovery of earnest money and equal amount as damages was granted. It is appropriate to mention that no appeal under Section 100 of the Code was filed by the defendant-appellants against the remand order dated 3-8-1993 passed by learned lower appellate Court nor any appeal was preferred against the judgement of the trial Court dated 4-5-1994. However, the plaintiff-respondent filed an appeal against the view of the trial Court especially against the findings with regard to refusal of relief of specific performance of the agreement to sell dated 29-2-1988 as amended on 14-6-1988. The lower appellate Court reversed the findings of the trial Court on issue Nos. 8(a), 1(a) and 1(b) by holding that the suit was not barred by Order 7, Rule 7 of the Code nor it was hit by the provision of Section 12(3) of the Act because after remand suitable amendments claimed by the plaintiff-respondent were permitted by the trial Court rejecting the objection of the defendant-appellants that claim introduced by amendment was barred by limitation. Then additional issues were also framed. The view of the learned lower appellate Court on the aforementioned issue reads as under :- "15. This fact is also not disputed by the defendants/ respondents. Plaintiff in compliance of Section 12(3) of the Act had got the plaint amended. Now the only question is whether under the circumstances of the case it could be said that relief of specific performance of a part of the agreement was barred by limitation or under Order 7, Rule 7, CPC. 16. Plaintiff had prayed for specific performance of sale of the contract. Now the only question is whether under the circumstances of the case it could be said that relief of specific performance of a part of the agreement was barred by limitation or under Order 7, Rule 7, CPC. 16. Plaintiff had prayed for specific performance of sale of the contract. When it was found and determined that defendants were in position to perform their part of the contract only in respect of 26 kanals 19 marlas of land, then it was also necessary for the plaintiffs to have relinquished his claim of specific performance in respect of remaining land, which the plaintiff did by making amendment in the plaint in the year 1994. The agreement of sale is dated 29-2-1988. The suit was originally filed on 6-9-1989 within limitation. As per Section 12(3) of the Specific Relief Act the Court could direct a party in default to perform specifically so much of his part of the contract as he can perform if the other party had relinquished all claims to the performance of the remaining part of the contract and all rights to compensation either for the deficiency or for the loss of damage sustained by him through default of the defendant. By way of amendment, the plaintiff had just complied with the provisions of Section 12(3)(b) of the Act when the plaintiff wrote in para No. 8 (a) of the plaint that if the defendants are found to be owners in possession of lesser share in the suit land, than agreed, then the suit of the plaintiff may be decreed to that extent only and the plaintiff relinquished all claims of performance of remaining part of the contract and complied with the provisions of Section 2 (3) of the Specific Relief Act. Under the circumstances, this compliance cannot be said to be a new relief claimed after the expiry of period of limitation, which could not be granted. Under the circumstances, Order 7, Rule 7 CPC, can- not also be called a bar to the relief since in the original plaint also the relief was specifically asked and in the alternative, it was left to the Court to grant any relief, which the Court deemed proper. The relief claimed originally cannot be called as vague. 17. From the above discussion, finding of the trial Court on issue Nos. 8(a), 1(a) and 1(b) are reversed. The relief claimed originally cannot be called as vague. 17. From the above discussion, finding of the trial Court on issue Nos. 8(a), 1(a) and 1(b) are reversed. It is held that the plaintiffs shall be entitled to possession of 26 kanals 19 marlas of land by way of specific performance of agreement of sale; and that the suit is not barred by limitation. Although the mortgage sum has been fixed at Rs. 7000/- but in the peculiar circumstances of the case, it will not be proper to make it proportionate and it will be in the fitness of things that the plaintiffs is not allowed as (sic) adjustment and is asked to pay the balance sale consideration without adjustment of the mortgage amount. 18. From the above discussion, this appeal is accepted. Suit of the plaintiff for specific performance of the agreement of sale in respect of 26 kanals 19 marlas of land on payment of Rs. 42713/- (calculated @ Rs. 17,000/- per killa for 26 kanals 19 marlas, total amount of Rs. 57713/- minus Rs. 15,000/- as earnest money paid shall stand decreed." 6. Mr. M. L. Saggar, learned counsel for the defendant-appellants has argued that the amendment by adding para 8-A in the plaint on 14-12-1993 and the prayer for part performance of the agreement to sell would not date back to the date of filing of the suit and, therefore, the relief to that extent has to be declined as time barred. Learned counsel has placed reliance on Article 54 of the Schedule appended to the Limitation Act, 1963 which provides a limitation period of 3 years from the date fixed for the execution of the sale deed. Learned counsel has further argued that under Section 20 of the Act, the relief of specific performance is a discretionary relief and the discretion exercised by the trial Court in refusing specific performance of the agreement to sell dated 29-2-1988 as amended on 13-6-1988 should not have been interfered with by the learned lower appellate Court. Learned counsel has maintained that the alternative relief of refund of the double the earnest amount as granted by the trial Court is more appropriate and the same deserves to be restored. 7. Mr. Learned counsel has maintained that the alternative relief of refund of the double the earnest amount as granted by the trial Court is more appropriate and the same deserves to be restored. 7. Mr. S. K. Singla, learned counsel for the plaintiff-respondent has argued that the amendment for the claim of a part performance of the agreement to sell could even be incorporated at the belated stage because it constitute a lesser claim than the one made in the original suit. According to the learned counsel the cause of action for specific performance of the agreement to sell had arisen to the plaintiff-respondent on 31-7-1988 after the date of execution of sale deed was extended from the earlier date which was fixed to be 15-6-1988. The plaintiff-respondent had served a notice on 29-3-1989 and despite the dismissal of the suit filed against the defendant-appellants by their brother on 16-8-1989, the defendant- appellants did not come forward to execute the sale deed. Learned counsel has maintained that the cause of action as originated to the plaintiff-respondent has been pleaded before the trial Court well within the period prescribed by Article 54 of the Schedule appended to the Limitation Act, 1963 and therefore, claim of a lesser relief by invoking Section 12(3) of the Act would not result into a claim of a new relief so as to attract the bar of limitation. In support of his submission learned counsel has placed reliance on a judgement of this Court in the case of Dulla Singh and others V/s. Tilla and others, 1978 PLJ 208. 8. Having heard the learned counsel for the parties and perusing the judgements of both the Courts below, I am of the considered view that this appeal does not merit admission. There appears to be consensus of opinion in various judgements that the relief of part performance under Section 12(3) of the Act could be claimed even at the belated stage when the fact of defaulting party s inability to perform a part of the contract comes to light. There appears to be consensus of opinion in various judgements that the relief of part performance under Section 12(3) of the Act could be claimed even at the belated stage when the fact of defaulting party s inability to perform a part of the contract comes to light. Placing reliance on its earlier judgements in Kalyanpur Lime Works Ltd. V/s. State of Bihar, AIR 1954 SC 165 and a judgement of the Madras High Court in the case of A. L. Parthasarthi Mudaliar V/s. Venkata Kondiah, AIR 1965 Madras 188, their Lordships of the Supreme Court in the case of Rachakonda Narayana V/s. Ponthala Parvathamma (2001) 8 SCC 173: (AIR 2001 SC 3353) has held that it is open to the plaintiff to relinquish a part of the contract even at the belated stage of the proceedings. The view of the Supreme Court is discernible from perusal of paras 9 and 10 from the judgement in Rachakonda s case (AIR 2001 SC 3353 Paras 8 and 9) (supra) and the same reads as under :- "9. Now the question is whether relief under Section 12(3) of the Act is required to be pleaded in the plaint when the suit is laid or it can also be taken at the appellate stage. The view taken by the High Court is that the readiness and willingness to perform the terms of the contract by the plaintiff based on the latter part of sub-section (3) of Section 12 must be pleaded in the plaint itself when the suit is laid and in its absence the relief being discretionary cannot be granted by amendment of the plaint at the appellate stage. In Kalyanpur Lime Works Ltd. V/s. State of Bihar (AIR 1954 SC 165) an identical question came up for consideration before the Supreme Court. In the said case, the Apex Court held that relief based on Sections 13, 14, 15 and 17 of the Specific Relief Act, 1877 can be granted at any stage of the litigation. In A. L. Parthasarathi Mudaliar V/s. Venkata Kondiah Chettiar (AIR 1965 Mad 188) it is held that it is open to the plaintiff to relinquish part of the performance of the contract after paying the entire consideration of the contracted amount at the appellate stage of the proceedings if the defaulting party is not capable to perform the whole of the contract. 10. 10. We are in agreement with the statement of law expressed in the aforesaid decisions. In the present case, what we find is that it was for the first time at the appellate stage, defendant No.1 stated that he had no title in respect of Plot B Sivaiijama land which belonged to his first wife and his wife has refused to assign the said plot of land in his favour. It is on account of the said statement the plaintiff filed an application for amendment of the plaint relinquishing his claim in respect of Plot B of land as well as compensation for the loss he sustained for non-performance of part of the contract while agreeing to pay the entire contracted amount. An appeal is a continuation of the suit. When an appellate Court hears an appeal, the whole matter is at large. The appellate Court can go into any question relating to rights of the parties which a trial Court was entitled to dispose of provided the plaintiff possesses that right on the date of filing of the suit. Defendant 1 prior to filing of appeal by the plaintiff never informed the plaintiff that his wife has refused to assign Plot B of land in his favour and he having no title over the said plot of land is incapable to perform the whole part of the contract. Under such circumstances, it was open to the plaintiff to move for amendment of the plaint, pleading therein the ingredients for part performance of the contract as provided under sub-section (3) of Section 12 of the Act. (Italics added) 9. Under such circumstances, it was open to the plaintiff to move for amendment of the plaint, pleading therein the ingredients for part performance of the contract as provided under sub-section (3) of Section 12 of the Act. (Italics added) 9. When the facts of the present case are examined in the light of the principles laid down by the Supreme Court in Rachakonda s case (AIR 2001 SC 3353) (supra) it becomes evident that in the present case the plaintiff-respondent was sent back to the trial Court on remand an amendment of the plaint which was allowed by the trial Court vide its order dated 8-10-1993 and in pursuance to the amendment, the amended plaint was filed and para 8 (a) was permitted to be added which reads as under :- "That although the plaintiff has filed the suit for the specific performance of agreement regarding suit land, measuring 56 kanals 0 marlas, but if the defendants are found to be owners in possession of lesser share in the suit land, then the agreed one at the time of the execution of the agreement then the suit may kindly be decreed to that extent. The plaintiff relinquished all claims to the performance of the remaining part of the contract and all rights to compensation either for the deficiency or for the loss of damage sustained by him through the default of the defendants." 10. It would also be appropriate to make a reference to the relief claimed in para 13 of the unamended plaint which is extracted below for a ready reference :- "It is, therefore, prayed that a decree for possession by way of specific performance, ordering the defendants to specifically perform their part of the contract and execute a sale deed and get it registered and delivered the possession of suit land in favour of the plaintiff after obtaining the balance sale amount may kindly be passed in favour of the plaintiff and against the defendants with costs. In the alternative a decree for the recovery of Rs. 30,000/- may kindly be passed in favour of the plaintiff and against the defendants. As a consequential relief and decree for permanent injunction restraining the defendants to execute the sale deed or alienate the suit land to any other person then the decree may also be passed in favour of the plaintiff and against the defendants with cost. 30,000/- may kindly be passed in favour of the plaintiff and against the defendants. As a consequential relief and decree for permanent injunction restraining the defendants to execute the sale deed or alienate the suit land to any other person then the decree may also be passed in favour of the plaintiff and against the defendants with cost. Any other relief that the Court deemed fit may kindly be granted in favour of the plaintiff and against the defendants." 11. A perusal of para 13 of the unamended plaint and para 8(a) of the amended plaint filed on 14-12-1993 would make it evident that the plaintiff-respondent had pleaded for specific performance of the agreement to sell dated 29-2-1988 and 13-6-1988. After remand the plaintiff-respondent had claimed that if the defendant-appellants are found to be owners in possession of share lesser than the suit land then the one agreed between the parties at the time of execution of the agreement to sell then the suit might be decreed to that extent. It has specifically been averred that the plaintiff-respondent relinquished all his claims to the remaining part of the contract and all rights to compensation either for the deficiency or for loss of damage sustained by him on account of default by the defendant-appellants. It is further evident that on the basis of the remand order and amendment made by the plaintiff-respondent following two new issues were framed which are issue Nos. 8(a) and 1(b) :- "8(a) If execution of the agreement is proved and less land is found whether in that case plaintiff is entitled for specific performance of lesser area? If so to what effect? OPP. 1(b) whether the suit is barred by time ? OPD." 12 It is thus obvious that all the requirements of Section 12(3) of the Act have been complied with by the plaintiff-respondent. Section 12(3) of the Act is reproduced hereunder for facility of reference :- "12. Specific performance of part of contract.- (1) Except as otherwise hereinafter provided in this section, the Court shall not direct the specific performance of part of a contract. Section 12(3) of the Act is reproduced hereunder for facility of reference :- "12. Specific performance of part of contract.- (1) Except as otherwise hereinafter provided in this section, the Court shall not direct the specific performance of part of a contract. (2) x x x x x x x x x x x x x x x x x x (3) where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either- (a) forms a considerable part of the whole, though admitting of compensation in money; or (b) does not admit of compensation in money; he is not entitled to obtain a decree for specific performance; but the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party- (i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under clause (b), pays or has paid the consideration for the whole of the contract without any abatement; and (ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant. 13. It remains undisputed that the plaintiff-respondent has relinquished all his claims to the performance of the remaining part of the contract and all his rights to compensation either for deficiency or for the loss or damages sustained by him on account of non-performance of the other part of the contract by the defendant-appellants. It is also clear that the plaintiff-respondent is prepared to pay the amount of Rs. 42,713/- which is total price of 26 kanals 19 marlas of land. The total sale consideration comes to Rs. 57,713/- and the amount of Rs. 15,000/- paid as earnest money has to be reduced. The reliance of the learned counsel for the plaintiff-respondent on a judgement of this Court in the case of Dulla Singh (1978 PLJ 208) (supra) is also meritorious and it fully applies to the facts of the present case. 57,713/- and the amount of Rs. 15,000/- paid as earnest money has to be reduced. The reliance of the learned counsel for the plaintiff-respondent on a judgement of this Court in the case of Dulla Singh (1978 PLJ 208) (supra) is also meritorious and it fully applies to the facts of the present case. All the ingredients of Section 12(3) (i) and (ii) have been complied with. Therefore, the view taken by the lower appellate Court deserves to be upheld. 14. I am further of the view that the defendant-appellant did not file any appeal against the order of remand dated 3-8-1993 passed in Civil Appeal No. 56 of 27-3-1992 by the learned lower appellate Court. The learned lower appellate Court had issued a specific direction to the trial Court to re-admit the suit on its original number and grant opportunity to the parties to lead evidence on the question with regard to the mortgage amount payable for redemption of the suit land which was to be adjusted against the sale consideration. It was further ordered to hear the parties on the question as to whether the plaintiff-respondent was entitled to specific performance of a part of the contract and take possession to that extent. It is interesting to note that defendant appellants did not file an appeal before the learned lower appellate Court under Section 96 of the Code against the judgement and decree passed by the trial Court dated 4-5-1994. Against the aforementioned order of remand no appeal was filed by the defendant-appellants and there is a bar created by Section 105(2) of the Act that the correctness of the remand order could not be challenged by the defendant-appellant in an appeal filed against the judgement and decree after remand before the forum which had passed the remand order, although on a substantive question of law an appeal would lie under Section 100 of the Code before this Court. Aforementioned legal position emerges from a perusal of para 24 of the judgement of the Supreme Court in the case of Krishna Pillai Rajasekharan Nair V/s. Padmanabha Pillai (2004) 12 SCC 754 : (AIR 2004 SC 1206). For this additional reason also the order passed by the lower appellate Court deserves to be upheld. 15. For the reasons stated above, this appeal fails and the same is dismissed. For this additional reason also the order passed by the lower appellate Court deserves to be upheld. 15. For the reasons stated above, this appeal fails and the same is dismissed. However, in the peculiar facts and circumstances of the case the parties are left to bear their own costs.