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2010 DIGILAW 1417 (PNJ)

Mam Chand v. Naresh Kumar

2010-04-07

RAKESH KUMAR GARG

body2010
JUDGMENT Rakesh Kumar Garg J.:- This is defendants’ revision petition challenging the impugned order dated 23.01.2009 whereby application filed by the petitioners under Order 7 Rule 11 CPC has been rejected. 2. As per the averments, plaintiffs-respondents filed the present suit for mandatory injunction with consequential relief of permanent injunction against the petitioners alleging that vide agreement to sell dated 05.05.2006, the respondents agreed to purchase the land measuring 24 kanals 9 marlas in village Nigdhu, District Karnal and received earnest money. The last date for executing the sale deed was stipulated as 30.04.2007. The possession of the land was also alleged to be handed over to the plaintiff-respondents. The present suit was filed by the plaintiff-respondents on 22.03.2007 alleging that there was a typographical mistake in the agreement of sale with regard to the sale consideration which needs to be corrected and necessity arose to file the mandatory injunction to get the recital in the agreement of sale corrected, with further prayer for permanent injunction restraining the petitioners from alienating the suit land in any manner. 3. On appearance, the petitioners filed written statement and thereafter moved an application under Order 7 Rule 11 CPC inter alia submitting that the suit for injunction was not maintainable in view of the specific bar under Section 41(h) of the Specific Relief Act, 1963. It was further averred that the present suit was liable to be dismissed for want of court fee and the suit was not valued properly for the purpose of court fees and jurisdiction as the plaintiffs were required to affix ad valorem court fees. 4. Vide impugned order, while rejecting the aforesaid application, the trial Court observed that at this stage, it cannot be construed that plaintiffs had efficacious remedy to file suit for specific performance of agreement to sell. With regard to the fixation of the court fee, the trial Court observed that since the issue with regard to the typographical error as mentioned in the suit is yet to be decided, the issue of court fee shall be decided later on. 5. Challenging the aforesaid order, learned counsel for the petitioners has vehemently argued that in view of the clear bar of Section 41(h) the present suit was not maintainable as equal and efficacious remedy of specific performance of the agreement to sell was available to the respondents. 5. Challenging the aforesaid order, learned counsel for the petitioners has vehemently argued that in view of the clear bar of Section 41(h) the present suit was not maintainable as equal and efficacious remedy of specific performance of the agreement to sell was available to the respondents. Learned counsel further argued that from the relief sought in the suit, it is crystal clear that plaintiff-respondents were liable to affix ad valorem court fee as relief sought is for specific performance of the contract and thus the suit was liable to be rejected under Order 7 Rule 11 CPC. 6. On the other hand, learned counsel for the respondents has supported the impugned order and has submitted that the remedy of filing the suit for specific performance of agreement of sale was not available to the petitioners on the date of filing of the suit and the fixed court fee was paid on a suit for mandatory injunction as per law and thus no fault can be found with the impugned order. 7. I have heard learned counsel for the parties and perused the impugned order. 8. Admittedly, the present suit for mandatory injunction was filed on 22.03.2007, whereas the last date for execution of the sale deed was stipulated as 30.04.2007 in the alleged agreement to sell. Thus, on the date of filing of the present suit relief of specific performance of agreement to sell was not available and the aforesaid remedy was not available to the respondents. The argument of the learned counsel for the petitioners that during the pendency of the suit the stipulated date of 30.04.2007 has lapsed and therefore the suit was liable to be rejected under Order 7 Rule 11 (d) CPC is also without any merit. Learned counsel for the petitioners was unable to cite any judgment in support of his aforesaid argument. The provisions of Order 7 Rule 11 also do not support the arguments raised by learned counsel for the petitioners. Thus, I find no merit in the aforesaid contention as raised by the petitioners. 9. The second contention of the petitioners with regard to payment of court fee is also without any merit. It is only to mention that the issue with regard to fixation of court fee has not been decided by the trial court and has been kept open. 9. The second contention of the petitioners with regard to payment of court fee is also without any merit. It is only to mention that the issue with regard to fixation of court fee has not been decided by the trial court and has been kept open. Moreover, it is yet to be decided whether the alleged agreement to sell the land in question was for a lumpsum amount of Rs.80 lacs or for a sum calculated at the rate of Rs. 80 lacs per acre as alleged in the suit. In this view of the matter, I find no merit in this petition. Dismissed. ---------------------