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2009 DIGILAW 3921 (MAD)

M. Palanisamy v. Valmoorthy & Others

2009-09-30

V.PERIYA KARUPPIAH

body2009
Judgment : This revision has been preferred against the order passed by the lower Court in E.A.No.122 of 2007 in E.P.No.22 of 1985 in O.S.No.1231 of 1978 dated 28. 2008. 2. The petitioner herein was the fifth respondent before the lower Court. The first respondent had filed petition for ordering delivery of the petition mentioned property in pursuance of the decree passed in his favour and the lower Court had ordered delivery of possession as per the request of the petitioner/decree holder. Aggrieved against the order passed by the lower Court, the fifth respondent has preferred this revision petition. 3. The case of the petitioner (first respondent herein) before the lower Court are briefly stated as follows: The petitioner is the decree holder in O.S.No.1231 of 1978 and in accordance with the decree passed in favour of the petitioner, he had filed execution petition in E.P.No.22 of 1985 and a sale deed was executed in favour of the petitioner. Thereafter, when he launched another EP for delivery of possession of the suit property, the fifth respondent had obstructed the execution and therefore, the petitioner had filed E.A.No.280 of 1997 for removal of third party obstruction. The said application was allowed on 16. 2007 and, therefore, the petitioner/decree holder was entitled to get the fruits of the sale deed obtained from the Court on 26. 2007 by delivery of possession of the property. Therefore, the petitioner prayed for the delivery of petition mentioned property in his favour and such other orders that may be passed in the circumstances of the case. 4. The fifth respondent had put forth his case as follows: The petition averments are denied as false. The petitioner did not give any proper description of the property obtained by him in the sale deeds. Therefore, the petition filed by the petitioner/decree holder is liable to be dismissed. 5. No oral and documentary evidence were adduced on either side. 6. The lower Court had considered the facts and circumstances of the case and had come to a conclusion that the petitioner/decree holder was entitled to the delivery of possession and accordingly, delivery of the property mentioned in the schedule was ordered by the lower Court. Aggrieved by the order of the lower Court, the fifth respondent therein has now preferred this revision. 7. Heard Mr. Prakash Goklaney, the learned counsel appearing for the revision petitioner and Mr. Aggrieved by the order of the lower Court, the fifth respondent therein has now preferred this revision. 7. Heard Mr. Prakash Goklaney, the learned counsel appearing for the revision petitioner and Mr. T. Arulraj, the learned counsel appearing for the respondents. 8. The learned counsel for the petitioner would submit in his argument that the lower Court was thoroughly misconceived the point at issue and had ordered delivery of possession of the suit property which is not in accordance with the tenor of the judgment rendered by the Honble Apex Court in AIR 2001 SC 3712 = 2002 (1) L.W. 368 in between Adcon Electronics Pvt. Ltd. v. Daulat. He would further submit in his argument that the decision of this Court rendered in between N.K. Jinnah vs. K.P. Krishnan reported in 2006 (2) MLJ 350 was relied upon by the lower Court for granting the relief of possession which is not correct in terms of the judgment rendered by the Honble Supreme Court in AIR 2001 SC 3712 . He would further submit in his argument that Section 22(2) of Specific Relief Act, 1963 is very clear and only upon the amendment of the prayer, possession of the property sought for specific performance could be granted. He would further submit that the decree was obtained by the respondent/plaintiff in collusion with the defendants who remained ex parte and the valuable right of the petitioner was affected by the order passed by the lower Court. He would further submit that the delivery of possession as ordered by the lower Court was not sustainable in law. 9. He would also draw the attention of this Court in respect of a judgment passed in between Babu Lal vs. M/s. Hazari Lal Kishori Lal reported in AIR 1982 SC 818 = (1982) 95 L.W. 106 S.N. wherein the Honble Apex Court had considered the amendment of the decree including the relief of possession sought for by the petitioner. He would further submit in his argument that the decree passed by the trial Court was only in respect of the specific performance of the agreement and accordingly, the sale deed was executed and, therefore, there cannot be any decree for possession and the delivery of possession ordered by the lower Court is not sustainable. He would further submit in his argument that the decree passed by the trial Court was only in respect of the specific performance of the agreement and accordingly, the sale deed was executed and, therefore, there cannot be any decree for possession and the delivery of possession ordered by the lower Court is not sustainable. Therefore, he would request the Court to interfere with the order passed by the lower Court and thereby, to set aside the same. 10. The learned counsel for the respondent/decree holder would submit in his argument that the suit was filed by the defendant in the year 1978 on an agreement of sale entered into between the respondent and the defendant on 12. 1973 and he had obtained the decree and thereafter he had taken steps to execute the decree and the sale deed was executed by the Court through the earlier execution proceedings and he has also filed EP for delivery of possession and at that time, the petitioner/fifth respondent had obstructed delivery and the delivery was also stalled due to his obstruction and therefore, he has filed an application to remove the obstruction and the same was allowed by the lower Court and the petitioner did not question the said order and it became final. He would submit that the petitioner had therefore come forward with the objection, while the E.P. for delivery has been proceeded by the decree holder and the lower Court was right in rejecting the objection raised by the petitioner as well as passed an order of delivery. He would also submit that the petitioner/third party is estopped from questioning the order passed by the lower Court since the petitioner/third party had not preferred any appeal against the order passed by the lower Court in the earlier application filed to remove the obstruction. He would also submit that the petitioner/third party is not a party to the suit or to the decree in order to question its proprietary. He would submit that the petitioner was only a third party and his objection was over-ruled and the said order became final and, therefore, he has no "locus standi" to question the proceedings of the Court in ordering delivery of the said property in terms of the sale deed executed by the Court. 11. He would submit that the petitioner was only a third party and his objection was over-ruled and the said order became final and, therefore, he has no "locus standi" to question the proceedings of the Court in ordering delivery of the said property in terms of the sale deed executed by the Court. 11. He would also submit that the judgment of Honble Apex Court and the various judgments of this Court to the effect that the decree passed for specific performance of contract would also comprise the relief of possession and the decree holder, who obtained the sale deed in pursuance of specific performance decree, is entitled to exercise his right over the said property comprised in the sale deed and, therefore, the possession of the said property is incidental to the sale. Therefore, there is no need for asking for possession separately. He would cite the judgment of Honble Apex Court relied upon by the learned counsel for the petitioner in between Babu Lal vs. M/s. Hazari Lal Kishori Lal reported in AIR 1982 SC 818 . He would also rely upon the judgment of this Court made in 2006 (2) MLJ 350 in between N.K. Jinnah vs. K.P. Krishnan. Apart from that he would also rely upon the unreported judgment of this Court made in the Review Application Nos.2251 to 2253 of 2003 in Application Nos.1873, 1874 and 2481 of 2002 in E.P.No.19 of 2000 of this Court dated 112. 2007. The aforesaid judgments of this Court would distinguish the circumstances under which the facts were considered in the judgment of Honble Apex Court made in Adcon Electronics Pvt. Ltd. vs. V. Daulat reported in AIR 2001 SC 3712 . He would further submit in his argument that the petitioner was a third party and he was a subsequent purchaser in the year 1990 and his rights were certainly affected by doctrine of "lis pendens" and, therefore, he has no legs to stand or to question the order passed by the lower Court. He would further submit in his argument that the petitioner was a third party and he was a subsequent purchaser in the year 1990 and his rights were certainly affected by doctrine of "lis pendens" and, therefore, he has no legs to stand or to question the order passed by the lower Court. Further, he would submit in his argument that the decree has been obtained by the respondent/decree holder in the year 1978 and he was under the fond hope of obtaining the fruits of the decree, but the petitioner, at the instigation of the defendants, had come forward with this petition to drag on the proceedings as far as possible and therefore, they cannot be considered as the bonafide purchasers and their intention is also not bonafide. 12. He would further submit in his argument that the judgment of Honble Apex Court reported in AIR 1982 SC 818 in between Babu Lal vs. M/s. Hazari Lal Kishori Lal would explain clearly that in appropriate cases the relief of possession could be combined in one suit and the possession need not be asked in all the cases and, therefore, the facts and circumstances of this case would be squarely attracted by the said judgment and the facts and circumstances discussed in the judgment of Honble Apex Court reported in AIR 2001 SC 3712 are not applicable to the facts and circumstances of the present case. He would also submit that the petitioner was, admittedly, in possession of the suit property which right is not appreciable under any law and if for any reason, the respondent has been directed to go for a separate suit for possession against the petitioner, it would again put the decree holder to get his relief after a long period. He would again submit that the hypothetical approach of the petitioner is certainly against the cause of justice and therefore, the claim of the petitioner was rightly rejected by the lower Court and this Court may not interfere with the order passed by the lower Court and thus, the Revision Petition may be dismissed. 13. I have given anxious thoughts to the arguments advanced on either side. 14. 13. I have given anxious thoughts to the arguments advanced on either side. 14. The facts which are necessary for the disposal of the point at issue would be that the plaintiff obtained a decree for specific performance against the defendant in respect of the suit property and he had launched the execution proceedings for the execution of sale deed by the defendants or by the Court and, accordingly, the execution Court had ordered execution of sale deed in pursuance of the specific performance decree passed against the plaintiff. Thereafter, he had also launched execution seeking for delivery of possession of the said property despite he has not asked for the relief of possession in the suit and no decree for possession has also been ordered. The lower Court had ordered delivery of possession and the third party (the petitioner herein/fifth respondent) obstructed the delivery since he was in possession of the suit property. The plaintiff/decree holder has filed an application for removal of obstruction and the same was ordered and thereafter, delivery has been ordered by the lower Court rejecting the objections of the third party/the fifth respondent (the petitioner herein). Admittedly, the revision petitioners herein, who was a third party/fifth respondent before the lower Court, had purchased the suit property long after the decree was passed in favour of the plaintiff/respondent herein. 15. The main contention raised by the learned counsel for the revision petitioner/third party would be that the order passed by the lower Court in ordering delivery, when there was no decree passed by the trial Court for possession of the suit properties, is not sustainable in view of Section 22 of Specific Relief Act (hereinafter referred as Act). For the purpose of appreciating the contention of the revision petitioner, the provisions of Section 22 of the Act have to be extracted. Section 22 of the Act would run as follows: "22. Power to grant relief for possession, partition, refund of earnest money, etc. For the purpose of appreciating the contention of the revision petitioner, the provisions of Section 22 of the Act have to be extracted. Section 22 of the Act would run as follows: "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 may be just for including a claim for such relief". 16. The other contention of the learned counsel for the revision petitioner would be that the Honble Apex Court in its judgment reported in AIR 2001 SC 3712 in between Adcon Electronics Pvt. Ltd. v. Daulat has categorically laid down that the plaintiff in the suit for specific performance cannot seek for possession when he failed to pray for the relief of possession in the suit. The relevant passage relied upon by the learned counsel for the revision petitioner would run as follows: 17. 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. 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. 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". In the said dictum, it has been categorically laid down that the relief of possession of a land or other immovable property, subject matter of the agreement for sale in a suit for specific performance cannot be claimed or granted by the Court unless the possession of such immovable property was specifically prayed for. It has been further found by the Honble Apex Court in the said judgment that the suit filed by the plaintiff was not for the suit for land, as there was no possession asked for in the said suit. It has been categorically found by the Honble Apex Court in the said judgment that the suit for specific performance in simpliciter is not a suit for land under the meaning of Clause 12 of the Letters Patent and thus it has been found that the suit for specific performance of a contract for sale of immovable property was found to be a suit on a personal contract in between parties. The reliance placed by the learned counsel for the plaintiff reported in AIR 2001 SC 3712 cited supra was applicable only in the appropriate cases which were mentioned in Section 22 of the Act and, therefore, it was found that the relief of possession should have been asked for in the plaint. He would submit that the present case on hand is concerned, it is not attracted under the cases mentioned in Section 22 and hence, the said dictum is not applicable. He would submit that the present case on hand is concerned, it is not attracted under the cases mentioned in Section 22 and hence, the said dictum is not applicable. The further contention is that the ruling given in the judgment reported in AIR 1982 SC 818 in between Babu Lal vs. M/s. Hazari Lal Kishori Lal alone is applicable since the present case is not coming under the definition of appropriate cases. The relevant passage which was relied upon by the learned counsel for the respondent/plaintiff in the said judgment would be as follows: 13. The expression in sub-section (1) of Section 22 "in an appropriate case" is very significant. The plaintiff may ask for the relief of possession or partition or separate possession "in an appropriate case". As pointed out earlier, in view of Order 2 Rule 2 of the Code of Civil Procedure, some doubt was entertained whether the relief for specific performance and partition and possession could be combined in one suit; one view being that the cause of action for claiming relief for partition and possession could accrue to the plaintiff only after he acquired title to the property on the execution of a sale deed in his favour and since the relief for specific performance of the contract for sale was not based on the same cause of action as the relief for partition and possession, the two reliefs could not be combined in one suit. Similarly, a case may be visualized where after the contract between the plaintiff and the defendant the property passed in possession of a third person. A mere relief for specific performance of the contract of sale may not entitle the plaintiff to obtain possession as against the party in actual possession of the property. As against him, a decree for possession must be specifically claimed or such a person is not bound by the contract sought to be enforced. In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simpliciter, without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree against him completely he is bound not only to execute the sale deed but also to put the property in possession of the decree-holder. In order to satisfy the decree against him completely he is bound not only to execute the sale deed but also to put the property in possession of the decree-holder. This is in consonance with the provisions of Section 55(1) of the Transfer of Property Act which provides that the seller is bound to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature admits. 16. It may be pointed out that the Additional Civil Judge had decreed the suit for specific performance of the contract. The High Court modified the decree to the extent that the sale deed was to be executed by respondents Nos.6 to 9 together with petitioner. In short, the decree was passed by the High Court not only against respondents Nos.6 to 9 but also against the subsequent purchaser i.e., the petitioner and thus the petitioner was himself the judgment-debtor and it cannot be said that he was a third person in possession and, therefore, relief for possession must be claimed. The contention on behalf of the petitioner is that the relief for possession must be claimed in a suit for specific performance of a contract in all cases. This argument ignores the significance of the words in an appropriate case. The expression only indicates that it is not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for specific performance of a contract for the transfer of the immoveable property. That has to be done where the circumstances demanding the relief for specific performance of the contract of sale embraced within its ambit not only the execution of the sale deed but also possession over the property conveyed under the sale deed. 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-sec (2) of S.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 proceedings. 17. Besides, the proviso to sub-sec (2) of S.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 proceedings. 17. As far as present case is concerned, we could see that the relief of Specific Performance was asked for by the respondent/plaintiff in the year 1978 and the suit was decreed and the execution was launched and the sale deed was executed thereafter by the execution Court. The order of delivery passed by the execution Court was also obstructed by the petitioner herein and the same was ordered to be removed subsequently. The petitioner had also objected in the Execution Petition for the grant of delivery of the property and his objection was over-ruled by the lower Court and the delivery was once again ordered in the year 2008. For a decree made in 1978, the delivery of possession was ordered in the year 2008. As per the dictum laid down by the Honble Apex Court in the aforesaid judgment, the provisions made in Section 22 of the Act are found intended for avoiding multiplicity of proceedings. If really, the plaintiff is directed to go for filing a separate suit for possession from the date of execution of the sale deed, it would certainly defeat the ends of justice and it would be against the tenor of the judgment rendered by Honble Apex Court. According to the said judgment the provisions of Section 55(1) of the Transfer of Property Act was referred to and the execution of the sale deed by the Court would provide the decree holder, the title as well as the possession of the property. It has also been categorically found by the Honble Apex Court that the right to possession is incidental to the Specific Performance of Contract of sale. Rightly, it has also been ordered that the necessary amendment could be permitted at any stage of proceedings even at the stage of execution in order to avoid multiplicity of proceedings. As per the aforesaid dictum, the respondent/plaintiff is at liberty to amend the plaint as well as the decree even at the stage of execution. 18. The petitioner is a third party who is a subsequent purchaser. The petitioner cannot have any say in amending the plaint as well as the decree which was passed against the defendants. As per the aforesaid dictum, the respondent/plaintiff is at liberty to amend the plaint as well as the decree even at the stage of execution. 18. The petitioner is a third party who is a subsequent purchaser. The petitioner cannot have any say in amending the plaint as well as the decree which was passed against the defendants. Therefore, she has locus standi to object if the respondent/plaintiff is asking for any amendment in the plaint as well as in the decree. Therefore, while relying upon the dictum rendered in 2006 2 MLJ 350 in between N.K. Jinnah vs. K.P. Krishnan, the lower Court should permit the respondent/plaintiff to amend the plaint as well as the decree including the prayer for possession of the said property in accordance with the judgments of Honble Apex Court made in AIR 1982 SC 818 cited supra and 2001 AIR SC 3712 cited supra. Therefore, this Court finds that the order passed by the lower Court is liable to be interfered with but with certain directions. Since the procedure as contemplated under Section 22 of the Act is meant to advance the cause of justice and it is only an enabling provision in order to avoid multiplicity of proceedings, it has become necessary for this Court to direct the respondent/plaintiff to amend the plaint to add the relief for possession as contemplated in the provisions of Section 22 of the Act and shall the decree also be consequentially amended and thereafter to claim delivery of possession against the judgment debtors as well as the petitioner who entered into possession subsequent to the suit. It has been categorically mentioned in the said judgment of Honble Apex Court in para 20, about the stage of amending the plaint as any stage which includes the stage of execution. 19. Therefore, this Court is inclined to interfere with the order passed by the lower Court and set aside the same with a direction to permit the respondent/plaintiff to amend the plaint and, consequently, the decree passed thereon and thereafter to continue the execution petition filed by the petitioner in view of the long period lapsed due to the pendency of proceedings. The lower Court is also directed to keep the execution proceedings pending awaiting the amendment of the plaint as well as the decree and after receiving the amended decree to continue the said proceedings and to pass suitable orders thereon. With the aforesaid directions, the Civil Revision Petition is allowed. No costs. Consequently, connected MP is closed.