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2018 DIGILAW 839 (GAU)

Zinnat Rehana v. Safur Ali

2018-05-21

PRASANTA KUMAR DEKA

body2018
JUDGMENT : 1. Heard Mr. A.C. Sarma, learned counsel appearing for the petitioner. Also heard Mr. H.K. Sarma, learned counsel appearing for the respondent. 2. In this revision application the order dated 7.4.2017 passed by the learned Civil Judge No. 2, Kamrup (Metro) in Misc.(J) Case No. 569/2016 arising out of Title Suit No. 300/2015 is put under challenge. The present petitioner as the plaintiff filed the suit for specific performance of contract pleading that after execution of the agreement for sale he was delivered possession of the suit land which he accepted. The defendant-respondent contested the claim of the plaintiff-petitioner thereby denying the part performance on the part of the defendant-respondent of delivery of possession of suit land as per the contract. The suit proceeded after framing of the issues and while the suit was fixed for cross-examination of plaintiff side and cross-examination of petitioner was going on, at that stage the petitioner preferred an application under order VI, rule 7 of the Code of Civil Procedure, 1908 (‘CPC’) to introduce the following, which is reproduced herein below: “7. That, the above illegal acts of the opposite party/defendant amounts to dispossession of the petitioner plaintiff from the suit premises for which the plaint is required to be amended as follows: A. A new paragraph as 11(a) is to be added after paragraph 11 of the plaint as follows— “That, on 10.8.2016 the opposite party/defendant has trespassed over the suit premises, have cut the mango and neem tree standing over the suit premises by engaging labourers. The labourers also have cleaned the suit premises and removed the chali house constructed by the plaintiff/petitioner over the suit premises which was standing in a dilapidated condition. Further, to the utter surprise of the petitioner/plaintiff the opposite party/defendant has allowed some persons to stay in the portion of the house standing over the suit premises by removing the lock put therein by the petitioner/plaintiff and the opposite party defendant has asked the petitioner/plaintiff not to enter into the suit premises. B. Following are to be added in between the words “plaintiff” and “and as appearing in the fourth line of the paragraph 13 of the plaint after putting a, sign after the word “plaintiff” “on 10.08.2016 when the opp. B. Following are to be added in between the words “plaintiff” and “and as appearing in the fourth line of the paragraph 13 of the plaint after putting a, sign after the word “plaintiff” “on 10.08.2016 when the opp. party defendant has illegally occupied suit premises.” C. A new paragraph as paragraph No. “ii(a)” is to be added as follows after the paragraph No. “ii” in the prayer portion of the plaint. “ii(a) for recovery of possession of the suit premises by ejecting his men and materials therefrom.” 3. The defendant-respondent raised his objection against the said application for amendment by filing written objection and the said amendment application was registered as Misc (J) Case No. 569/2016. After hearing the parties to the suit, the learned trial court rejected the amendment application of the plaintiff-petitioner and while doing so the learned court held as follows: “It is true that it is open to the plaintiff to sue not only for the execution of a deed of sale, but also for possession but he is not bound to do so for the simple reason that at the time when she instituted the right to possession was not vested in her. She acquires that right only on the execution of the deed of conveyance by the vendor. For such incorporation by way of amendment of plaint as prayed for by the plaintiff, apparently, the character and nature of the suit will be changed. Considering all the foregoing rationale, I find it imprudent to allow the plaintiff's prayer to amend the plaint, more so, when the trial has already commenced. Petition 3935 is rejected. This Misc.(J) Case is dismissed on contest No costs.” 4. Mr. A.C. Sarma, learned counsel for the petitioner submits that while dismissing the said application the learned court below took contradictory views. On one hand it observed that by introducing the said amendment the nature of the suit would change and on the other hand, it observed that nature of relief in a suit for specific performance of contract for sale requires all the necessary ingredients to be pleaded in order to perform the said contract specifically as per the direction of the court. A contract for sale includes both the process of execution of the sale deed and putting the vendee in possession of the property sold, thus, Mr. A contract for sale includes both the process of execution of the sale deed and putting the vendee in possession of the property sold, thus, Mr. Sarma submits that the learned court below failed to exercise its jurisdiction and misdirected itself and rejected the said application. 5. On the other hand, Mr. H.K. Sarma, learned counsel appearing for the defendant-respondent opposes the submission of the learned counsel for the petitioner. His contention is, if at all there was dispossession by the defendant-respondent, the plaintiff-petitioner ought to have come prior to the stage of trial and in addition to that he submits that the amendment sought to be introduced are totally misconceived inasmuch no possession was at all delivered after the sale agreement was executed or any part performance was also performed by the defendant-respondent or the plaintiff-petitioner, as aforesaid. Thus, the learned court below has rightly held that in the event of introduction of said amendment it would change the nature and character of the suit. Submitting so he sought for dismissal of this revision application. 6. Considered the submission of the learned counsel. Section 22 of the Specific Relief Act, 1963 stipulates 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 (5 of 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, 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 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. (3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21.” If the amendment sought to be introduced by the plaintiff-petitioner is considered keeping in view the stipulation of the aforesaid section 22 of the Specific Relief Act, 1963, it is seen that notwithstanding anything to the contrary contained in the Code of Civil Procedure 1908, it is the duty of the plaintiff-petitioner to sought for amongst other reliefs the relief of possession over the subject property in addition to relief of specific performance of contract for sale. Further, it is stipulated in the said section 22 that no such relief of possession or one mentioned in the said section 22(1)(a) or (b) can be granted by the court unless it has been specifically pleaded there is no dispute at the Bar. 7. The suit is for specific performance of contract for sale of a plot of land in which the plaintiff-petitioner alleges that after execution of the said agreement for sale, possession was delivered which was equally resisted and objected by the defendant-respondent. By way of the amendment the plaintiff-petitioner sought for recovery of possession which is delivered allegedly after execution of said agreement. If the said relief of recovery of possession is not sought for in the plaint by introducing the same, the plaintiff-petitioner is not entitled for the relief of recovery of possession inasmuch as it is pleaded by the plaintiff-petitioner in her plaint that after execution of said agreement for sale, she was delivered possession. Under such circumstances even if the decree for specific performance for contract of sale of the land is allowed, the court at the time of execution of it, though a duty is cast upon it, would be reluctant to deliver the possession after execution of the registered sale deed as it has been pleaded that possession was already delivered. Accordingly, in my opinion the amendment sought for by the plaintiff-petitioner ought to have been allowed invoking the jurisdiction under section 22 of Specific Relief Act, 1963 and having not applied the said jurisdiction, I deem it fit for interference and setting aside the impugned order which I do and learned court below is directed to accept the said amendment sought to be introduced in the plaint. 8. 8. The opening sentence of section 22 of Specific Relief Act, 1963 is to be considered wherein it has a non-obstante clause, i.e., “Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908” and the same signifies the importance of amendment as it is specifically stipulated in the said provision that such relief must be specifically pleaded. This is quite natural because the suit is itself for the specific performance of contract and the Court is bound to know the specific default on the part of the defendant in adhering the promises he made and then only the court holding seisin of the dispute could come to know all the relevant facts for applying its discretion and the application of discretion is the mandate under section 20 of the Specific Relief Act, 1963. 9. Needless to say the defendant-respondent will definitely have the chance to file his additional written statement. Accordingly this revision petition stands disposed of. 10. Interim order passed earlier stands vacated.