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2013 DIGILAW 30 (CHH)

KISHAN PRASAD v. JAGENDRA PRASAD MAKRE

2013-01-14

N.K.AGARWAL

body2013
ORDER 1. The instant miscellaneous appeal filed under Order 43 Rule 1 (U) of the Code of Civil Procedure, 1908 (for short 'the C.P.C.') has been preferred by the defendant against the remand order passed by the Additional District Judge, Pendra Road, Dist. Bilaspur in Misc. Civil Appeal No. 06 of 2009. 2. Facts of the case in a nutshell giving rise to this appeal are as under : (i) The respondent/plaintiff filed a suit seeking relief of permanent injunction against the appellant, inter alia on the ground, the plaintiff and defendant have entered into agreement of sale with regard to suit land bearing Kh.No.678/17 area 0.60 acres situated at village Teekakala, Tahsil Pendra Road, Dist. Bilaspur, @ Rs.10/- per square feet. The plaintiff has paid Rs.20,000/- as earnest money on 26.08.2000. (ii) The appellant/defendant handed over the possession of the suit property to the plaintiff. As per the terms of the agreement, the sale deed has to be executed by the defendant after getting the suit land demarcated. However, the defendant did not get the land demarcated and the plaintiff came to know that the defendant is trying to sell the suit land to some one else and also trying to dispossess him. (iii) The trial Court, without registering the case, vide order dated 15.01.2009, dismissed the suit holding it as not maintainable for want of claiming relief of specific performance of contract. The above order was assailed by the plaintiff by filing misc. civil appeal before, the Court below. (iv) The Court below allowed the plaintiff's appeal, holding the suit as not barred under Section 11 (d) of the C.P.C. and is maintainable and remanded the matter for its decision on merits. Hence, this appeal. 3. Shri M.D. Sharma, learned counsel appearing for the appellant, assails the judgment of the first appellate Court for the reasons: Section 53-A of the Transfer of Property Act, 1882 (for short 'the Act of 1882') is ordinarily to be used as a defence and not as a weapon of attack and right is available only to the defendant to protect his possession. The plaintiff vendee having efficacious remedy by way of suit for specific performance, suit for permanent injunction, filed was not maintainable. For the above, he placed reliance upon the judgment of the Supreme Court in the cases of Maneklal Vs. The plaintiff vendee having efficacious remedy by way of suit for specific performance, suit for permanent injunction, filed was not maintainable. For the above, he placed reliance upon the judgment of the Supreme Court in the cases of Maneklal Vs. H.J. Ginwalla, AIR 1950 SC 1 and the judgment of Privy Council in the case of Probodh Kumar Das Vs. Dantmara Tea Co. Ltd., AIR 1940 PC 1. 4. On the other hand, Shri Saleem Qazi, learned counsel appearing for the respondent supported the order impugned and submitted: the plaintiff, for the purpose of immediate protection of his right, can file a suit for permanent injunction even without filing a suit for specific performance of the contract. 5. I have heard learned counsel for the parties and perused the paper book. 6. The real object of Order 7 Rule 11 is to keep out of the Court irresponsible law suits. Order 7 Rule 11 of the C.P.C. lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised the trial court can exercise the power at any stage of the suit, that is, before registering the plaint or after issuing summons to the defendant any at any time before the conclusion of the trial - and also does not say in express terms about the filing of a written statement: for the purposes of deciding an application under clauses (a) and (d) of Order 7 Rule 11 of the C.P.C., the averments in the plaint are germane (please see Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others, (2004) 3 SCC137). 7. Section 34 of the Specific Relief Act prohibits a suit for mere declaration without consequential relief. Section 53-A of the Act of 1882 is ordinarily to be used as a defence and not as a weapon of attack. The Privy Council, in the case of Probodh Kumar Das (supra) has held that the right conferred by Section 53-A of the Act of 1882 is a right available only to the defendant to protect his possession. 8. The Supreme Court, in the case of Srimat Shamrao Suryavanshi and another Vs. Pralhad Bhairoba Suryavanshi (dead) by LRs. The Privy Council, in the case of Probodh Kumar Das (supra) has held that the right conferred by Section 53-A of the Act of 1882 is a right available only to the defendant to protect his possession. 8. The Supreme Court, in the case of Srimat Shamrao Suryavanshi and another Vs. Pralhad Bhairoba Suryavanshi (dead) by LRs. and others, (2002) 3 SCC 676 has held, the following necessary conditions are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. (1) there must be a contract to transfer for consideration of any immovable property; (2) the contract must be in writing, signed by the transferor, or by someone on his behalf: (3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained; (4) the transferee must in part-performance of the contract take possession of the property, or of any part thereof; (5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract. 9. If the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under Section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract is barred by limitation. The above judgment of the Supreme Court again suggests, the protection under Section 53-A of the Act of 1882 is available to the defendant. 10. A Single Judge of Punjab and Haryana High Court, in the case of Jasmer Singh and others Vs. Kanwaljit Singh and another, AIR 1991 Punjab & Haryana 194 has held the suit for permanent injunction filed by the vendee-plaintiff as not maintainable, in view of availability of equally efficacious relief by way of suit for specific performance. 11. Now, I shall examine the plaint averments. A bare perusal of the plaint averments would reveal, there is no pleading why suit for specific performance has not been filed. Further, there is no averment in the plaint fulfilling the conditions, which are necessary in order to defend or protect the possession under Section 53-A of the Act, as held by the Supreme Court in the case of Srimant Shamrao Suryavanshi, (2002) 3 SCC 676 (supra). Further, there is no averment in the plaint fulfilling the conditions, which are necessary in order to defend or protect the possession under Section 53-A of the Act, as held by the Supreme Court in the case of Srimant Shamrao Suryavanshi, (2002) 3 SCC 676 (supra). Therefore, even assuming the suit for permanent injunction maintainable in order to protect possession under Section 53-A of the Act of 1882 even without claiming relief of specific performance, the suit was not maintainable as the necessary ingredients to claim relief under Section 53-A of the Act of 1882 are absent in the plaint. 12. The matter can be looked from another angle also. The suit has been filed after about 8 years of entering into the agreement of sale. As per the plaint averments, the bargain was @ Rs.10/- per square feet and the area of the suit land under agreement is 60 decimals, therefore, the sale consideration would be more than Rs.2,50,000/- and the plaintiff had only paid Rs.20,000/- as earnest money. If tiling of such suit, without claiming relief of specific performance is allowed, then any person may enter into the agreement of sale by giving a meager amount as earnest money and thereafter without showing his willingness to get the sale executed may retain possession, which is not permissible under the law prevailing in the country. 13. In view of above, in my opinion, after perusing the plaint averments, the trial Court has rightly rejected the plaint and the first appellate Court, committing a grave error of law, has allowed the appeal and remanded the matter back to the trial Court, holding the suit as maintainable. 14. For the foregoing, the appeal deserves to be and is hereby allowed. The order passed by the first appellate Court is set aside and the order passed by the trial Court rejecting the plaint is upheld. 15. No order as to costs. Appeal Allowed.