Research › Search › Judgment

Punjab High Court · body

2007 DIGILAW 875 (PNJ)

Banwari Lal v. Shri Sundra

2007-04-17

RAJIVE BHALLA

body2007
JUDGMENT Rajive Bhalla, J. (Oral) - Challenge in the Regular Second Appeal is to the judgement of the Additional District Judge, Karnal dated 13.2.1982, whereby an appeal Filed by the appellant, challenging the judgement and decree passed by the Sub Judge, 1st Class, Karnal was dismissed, as being not maintainable. 2. The appellant herein, filed a suit for possession of agricultural land, measuring 24 Kanals 0 Marlas by way of a specific performance of an alleged agreement to sell dated 22.11.1976. The sale consideration was fixed at Rs. 10,000/-, Rs. 3,000/- was alleged to have been paid to the respondent on 22.11.1976 as earnest money. The balance amount of Rs. 7000/- was to be paid at the time of execution and registration of the sale deed. The sale deed was to be execrated on or before 22.2.1977. The respondent instead of executing a sale deed executed a second agreement dated 23.2.1977 and received Rs. 2400/- in cash. The respondent, admitted, executing the agreement dated 22.11.1976 and agreed to execute the sale A deed on or before 27.3.1977. The balance sale consideration of Rs. 1600/- was to be received by the respondent before the Sub Registrar. It was further alleged that the respondent, once again, failed to execute the sale deed and a third agreement dated 7.11.1977 was executed, pursuant whereto a sum of Rs. 1600/- was paid to the respondent. The sale deed was now to be executed on 7.11.1978. On 7.11.1978, though the appellant was present before the Sub-Registrar, the respondent failed to appear, compelling the appellant to serve a legal notice, requiring the respondent to execute the sale deed. As the respondent failed to execute the sale deed, the appellant filed the present suit. 3. In opposition to the averments in the plaint, the respondent, did not deny the execution of the first agreement to sell but pleaded that the appellant had not come present to get the sale deed executed before the Sub-Registrar. The second agreement to sell was not denied. As regards the third agreement to sell, it was pleaded that it was an agreement to mortgage. It was further pleaded that as the appellant was not ready and willing to get the sale deed executed, he had no right to seek specific performance. 4. The second agreement to sell was not denied. As regards the third agreement to sell, it was pleaded that it was an agreement to mortgage. It was further pleaded that as the appellant was not ready and willing to get the sale deed executed, he had no right to seek specific performance. 4. During the pendency of the suit, the appellant amended the plaint and prayed for the grant of an alternative relief of damages valued at Rs. 12,400/-. 5. After framing issues and permitting the parties to lead evidence, the learned trial Court declined the relief of specific performance but decreed the alternative relief of damages. The learned trial Court, vide its judgement and decree dated 19.8.1981, held that the was plaintiff was entitled to recover a sum of Rs. 12,400/- with interest @ 6% p.a. from 7.11.1978 till the date of decree and thereafter to recover interest @ 6% p.a. on the principal amount from the date of decree till the date of its realisation. 6. Aggrieved by denial of the relief of specific performance, the appellant filed an appeal before the Additional District Judge, Karnal. The appeal was dismissed by holding that as the appellant was granted the alternative relief of damages, the appeal challenging denial of relief of specific performance was not maintainable. Reliance was placed upon a judgement of the Madras High Court reported as Sakku Bai Ammal v. R. Babu Reddiar and others, AIR 1977 Madras 223. 7. Counsel for the appellant contends that the learned first appellate Court committed an error of jurisdiction and thus, an error of law, while dismissing the appeal as not maintainable. Grant of an alternative relief, cannot bar the right of an aggrieved litigant to file an appeal impugning, denial of the main relief. It is contended that the judgement of the Madras High Court Sakku Bai Ammal (supra) relied upon by the first appellate Court; to hold that the appeal was not maintainable, was considered by Allahabad High Court in Smt. Sunder Bai died by L.R. Kishorilal v. Anandi Lal died and after him Smt. Mohaniwali and others, AIR 1983 Allahabad 23. By placing reliance upon a judgement of Patna High Court in Union of India v. Garbhu Sao, AIR 1972 Patna 341, it was held that the position in law as enunciated by the Madras High Court was incorrect. By placing reliance upon a judgement of Patna High Court in Union of India v. Garbhu Sao, AIR 1972 Patna 341, it was held that the position in law as enunciated by the Madras High Court was incorrect. It is prayed that in view of the fact that the appeal could not have been dismissed as not maintainable, the present appeal be accepted and the matter be remitted to the first appellate Court for a decision afresh in accordance with law. 8. Counsel for the respondent, on the other hand, places reliance upon the judgement of the Madras High Court to contend that as the appellant had prayed for the grant of an alternative relief i.e. in essence had given up the main relief, his appeal against the denial of the relief of specific performance was rightly held to be not maintainable. It is contended that by praying for an alternative relief, the appellant exercised his choice and as both reliefs are placed at par, grant of one relief and denial of other debars the appellant from impugning the judgement of the trial Court in so far as it declines the relief of specific performance. 9. It is further argued that the exercise of discretion by the trial Court in denying the relief of specific performance to the appellant, in teens of Section 20 of the Specific Relief Act, does not warrant interference as the discretion, so exercised, was neither perverse nor violative of any law. It is further argued that as no question of law arises, the present appeal be dismissed. 10. I have heard learned counsel for the parties and perused the paper book. The questions of law that arise for consideration are : a) "Whether the grant of an alternative relief, bars an aggrieved litigant from filing an appeal, with respect to a relief that has been denied to him ?" and b) "Whether the first appellate Court, committed an error of jurisdiction by holding that the grant of an alternative relief, rendered the first appeal, impugning the denial of the main relief, not maintainable." 11. As noticed in the narrative of facts, the First Appellate Court, dismissed the appeal by holding that as the alternative relief of damages had been decreed, the appeal impugning the denial of the relief of specific performance was not maintainable. As noticed in the narrative of facts, the First Appellate Court, dismissed the appeal by holding that as the alternative relief of damages had been decreed, the appeal impugning the denial of the relief of specific performance was not maintainable. The first Appellate Court relied upon a judgement of the Madras High Court reported as Sukku Bai Ammal (supra). The said judgement, came up for consideration before a Bench of the Allahabad High Court in Smt. Sunder Bai (supra). After considering the aforementioned judgement, it was held as follows :- "I find myself unable to subscribe to the view expressed in either of these two decisions. The effect of the decisions is that in a case, where a plaintiff seeks a relief in the alternative and the trial court grants the relief claimed in the alternative, the plaintiff is precluded from saying before the appellate Court that he is entitled to the main relief claimed by him. Their could be no such estoppel. The true principle would seem to be that enunciated by the Patna High Court in Union of India v. Garbhu Sao, AIR 1972 Pat 341. The right to appeal is allowed to a person aggrieved from a decree or appealable order. The question, whether a plaintiff, who claimed alternative reliefs and is granted one of them can appeal for getting the other reliefs, would, therefore, depend on the answer to the question whether the plaintiff could be said to be a person aggrieved inspite of the grant of a relief to him by the trial Court. In the words of the learned Judges of the Patna High Court (at page 343) : "If the plaint read as a whole discloses that the plaintiff will be satisfied with either of the reliefs claimed by him, he cannot be allowed to appeal, if one of the reliefs is granted. One who gets what he wants cannot be said to be a "person aggrieved". One who gets what he wants cannot be said to be a "person aggrieved". On the other hand, if the plaintiff read as a whole gives an impression that of the alternative reliefs claimed one is the main relief and the other one is claimed only if it is found that the main relief cannot possibly be granted and the main relief is refused, it is open to the plaintiff to appeal and urge that on the facts and in law he is entitled to the main relief and should have been granted that. In such circumstances claiming alternative reliefs is no bar to appeal by the plaintiff." 12. The Allahabad High Court placed reliance on a judgement of a Division Bench of Patna High Court in Union of India v. Garbhu Sao, AIR 1972 Patna 341, to hold that where the alternative relief is granted, an appeal impugning the denial of the main relief would not be barred. I am in respectful agreement with the views expressed by the High Court of Patna and Allahabad High Court. The view of the Madras High Court does not appear to be a plausible or a pragmatic view of the law and I, therefore, express my inability to subscribe to the view taken by the Madras High Court. 13. The Code of Civil Procedure confers a right upon a plaintiff to pray for one or more reliefs, categorised as main and or alternative relief would be an unjust interpretation of law to hold that grant of an alternative relief would bar a plaintiff from filing an appeal, against the denial of other reliefs An appellate Court, faced with a controversy, similar to the one in the present case, must proceed to examine the plaint in its entirety and only thereafter proceed to infer, whether the plaintiff would be satisfied with the grant of one of the reliefs claimed. If the appellate Court arrives at a conclusion that the plaintiff would, be satisfied with the grant of any of the reliefs claimed, the appeal would not be maintainable However, if the appellate Court concludes that the alternative relief is claimed only if the main relief is denied, the appeal would most definitely be maintainable. 14. The right to file an appeal is statutorily enacted in Chapter VII of the Code of Civil Procedure. 14. The right to file an appeal is statutorily enacted in Chapter VII of the Code of Civil Procedure. Section 96 of the Act, provides for an appeal from a decree passed by any Court exercising original jurisdiction, to the Court authorised to hear the appeal. 15. In cases where multiple reliefs are claimed and one or more are granted, a composite decree is drawn up. A decree may grant or decline all the reliefs. It may also grant some of the reliefs claimed and decline others. The Code of Civil Procedure does not place any bar upon the right of an aggrieved plaintiff to file an appeal, against that part of the decree, which declines relief. Even otherwise, and without any legal semantics, suffice is it to say that where law permits the claim of an alternative relief, the grant thereof would not disentitle, an aggrieved plaintiff, from filing an appeal against that part of the decree that adversely affects his right. An interpretation to the contrary, in my considered opinion would be unnatural, unjust and arbitrary. Consequently the first question of law, as framed is answered by holding that grant of an alternative relief would not bar the filing of an appeal impugning that part of the decree that declines relief, except to the extent, noticed in the preceding paragraphs. 16. As regards answer to the second question of law, it would follow as a natural corollary, from answer to the first question of law that the First appellate Court, by holding that the appeal was not maintainable declined to exercise jurisdiction on an erroneous understanding of its jurisdiction. A perusal of the plaint in the present case discloses that out of the two reliefs claimed, grant of the alternative relief, namely the relief of damages, would not have satisfied the plaintiff. The relief of damages was only claimed if the relief of specific performance were to be denied. Consequently, the first appellate Court committed an error of jurisdiction by dismissing the appeal as not maintainable and thus, committed an error of law. In view of what has been stated herein above, the present appeal is allowed. The relief of damages was only claimed if the relief of specific performance were to be denied. Consequently, the first appellate Court committed an error of jurisdiction by dismissing the appeal as not maintainable and thus, committed an error of law. In view of what has been stated herein above, the present appeal is allowed. The judgement and decree of the first appellate Court is set aside and the matter is remitted to the first appellate Court, to decide the appeal afresh, in accordance with law, positively within a period of one month from the date the parties put in appearance. Parties are directed to appear before the trial Court on 14.5.2007. No costs. Appeal allowed.