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2016 DIGILAW 342 (PNJ)

SUKHDEV SINGH v. NIRMAL SINGH

2016-01-27

SHEKHER DHAWAN

body2016
JUDGMENT : Shekher Dhawan, J. Present revision petition under Article 227 of the Constitution of India is for setting aside order dated 1.8.2015 [Annexure P/6] passed by Additional Civil Judge [Senior Division], Amritsar in case titled Nirmal Singh v. Sukhdev Singh, whereby application under Section 28 of the Specific Relief Act, 1963 [for short, "the Act"] was dismissed. 2. Relevant facts of the case for the purpose of decision of the present petition; that plaintiff, Nirmal Singh had filed a suit for specific performance of agreement of sale dated 16.8.2005 in respect of the land in question. The Court of first instance decreed the suit of the plaintiff and the relief clause of the judgment dated 8.6.2010 is most relevant which is reproduced hereunder:- "RELIEF 13. As a cumulative result of the findings on the above issues, the suit is decreed to the effect that plaintiff is entitled to the possession over the land in suit by way of specific performance of the agreement of sale dated 16.08.2005 on payment of balance sale consideration of Rs. 3,30,000/- to the defendant, who is directed to execute the sale deed in favour of the plaintiff within a period of two months from today, failing which the plaintiff shall be at liberty to get the same executed through the process of the Court. Decree sheet be prepared and the file be consigned to the Record Room." 3. The appeal filed by the defendant was dismissed by the Court of first Appeal. Regular Second Appeal filed before this Court was also dismissed vide judgment and decree dated 5.9.2013 and the judgment and decree dated 8.6.2010 passed by Additional Civil Judge [Senior Division], Amritsar attained finality. 4. Learned counsel for the petitioner submitted that the respondent [Decree Holder] failed to deposit the amount of Rs. 3,30,000/- within the period of two months as directed by the Court below and subsequently, there was no reason for extension of time. Admittedly, the amount has been deposited on 1.7.2014 i.e., not within the period prescribed by the Court and the agreement stood rescinded as per Section 28 of the Act ibid. However, learned Court below dismissed the application vide impugned order which is against the provisions of law. So, the present petition be accepted and the order dated 1.8.2015 [Annexure P/6] be set-aside. 5. However, learned Court below dismissed the application vide impugned order which is against the provisions of law. So, the present petition be accepted and the order dated 1.8.2015 [Annexure P/6] be set-aside. 5. Learned counsel for the respondent-Decree Holder submitted that the agreement for specific performance was specifically held to be legal and valid by the Court of first instance and thereafter by the first Appellate Court and by this Court in Regular Second Appeal. Thereafter, the amount was deposited in the Court and there was no question of rescission of the agreement as per provisions of Section 28 of the Act and the order passed by the Court below does not call for any interference and the petition be dismissed. 6. Having considered the submissions made by learned counsel for the parties, this Court is of the considered view that there is no confusion of facts that the payment of Rs. 3,30,000/- was to be made in compliance with the judgment and decree dated 8.6.2010 passed by Additional Civil Judge [Senior Division], Amritsar, which had already attained finality on 5.9.2013 by way of decision of Regular Second Appeal by this Court. However, the said amount has not been deposited within the stipulated period and as per provisions of Section 28 of the Act ibid, the application should have been accepted, but the Court below dismissed the same which is not in accordance with law. 7. Identical matter was before Hon'ble Apex Court in Chanda [dead] through LRs v. Rattni and Anr. 2007(2) R.C.R. [Civil] 534 and the Hon`ble Supreme Court observed that the decree for specific performance has been described as a preliminary decree. The power under Section 28 of the Act is discretionary and the Court cannot ordinarily annul the decree once passed by it. Although, the power to annul the decree exists yet Section 28 of the Act provides for complete relief to both the parties in terms of the decree. 8. Similar view as taken by Apex Court in Bhupinder Kumar v. Angrej Singh, (2009) 8 SCC 766 that Section 28 of the Act gives power to the Court either to extend the time for compliance with the decree or grant an order of rescission of the agreement. These powers are available to the trial Court which passes the decree of specific performance. These powers are available to the trial Court which passes the decree of specific performance. The decree for specific performance is in the nature of a preliminary decree and suit is deemed to be pending even after the decree. Section 28(1) of the Act makes it clear that the Court does not lose its jurisdiction after grant of decree for specific performance nor does it become functus officio. Similar view was taken by the Co-ordinate Bench of this Court in Resham Singh and others v. Manmohan Singh Kent and others, 1985 AIR [Punjab} 193. However, the Court below completely ignored this fact while passing the order dated 1.8.2015 [Annexure P/6]. 9. In view of the above, the present revision petition stands accepted and the order dated 1.8.2015 passed by Additional Civil Judge [Senior Division], Amritsar is set-aside.