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Ex-servicemen Enterprises (P.) Ltd. Vs. Sumey Singh - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtDelhi High Court
Decided On
Case NumberSuit No. 37 of 1971
Judge
Reported inAIR1976Delhi181
ActsCode of Civil Procedure (CPC), 1908 - Sections 47 - Order 6, Rule 17 - Order 23, Rule 3; Specific Relief Act, 1963 - Sections 22
AppellantEx-servicemen Enterprises (P.) Ltd.
RespondentSumey Singh
Appellant Advocate V.S. Sawhney, Adv
Respondent Advocate L.C. Chechi, Adv.
Cases ReferredHatti v. Sunder Singh
Excerpt:
.....- suit for specific performance based on terms of compromise - specific performance sought in respect of agricultural land owned by defendant - section 22 makes it incumbent on plaintiff to ask for possession of property in addition to specific performance - original compromise stands binding on both parties - compromise not fallen simply because prayer for possession been added to claim of specific performance - trial of suit not necessary - defendant to deliver possession of land to plaintiff. - - the effect of the section thereforee is that in a suit for specific performance prayer for possession must be distinctly and specifically made. 20. when the compromise was made the defendant bad agreed not only to execute the sale deed but also to deliver possession to the plaintiff..........in the reserve bank of india on december 25, 1973, but the defendant did not deliver possession o& land agreed to be sold. 6. the plaintiff-decree-holder made an application for the execution of the decree (i. a. 1779 of 1974) and the execution proceedings started. in his application the plaintiff sought possession of the land. 7. the defendant's principal objection to the delivery of possession was that there was no claim for possession in the original plaint and there was no decree for possession against him. he, thereforee, said that there cannot be an order for delivery of possession.8. in the original plaint the plaintiff's claim was in these words:'a decree directing the sale of the land in his favor be passed against the defendant ...........'9. chawla j. recorded the statements.....
Judgment:
ORDER

1. This judgment is by way of postscript.

2. On January 18, 1971, the plaintiff brought a suit for specific performance against the defendant. Specific performance was sought in respect of agricultural land measuring 48 bighas and 10 bids was owned by the defendant in village Khampur, Sub-Tehsil Mehrauli. The defendant had agreed to sell the land to the plaintiff. As he did not convey the property the plaintiff brought the suit.

3. On November 1, 1973, before T. P. S. Chawla J the parties reached a compromise. The terms were reduced, to writing. The suit was decreed in terms of the compromise.

4. The term of the compromise was that the plaintiff will pay Rs. 50,000 over the original agreed price of Rupees 66,100 which he had already paid to the defendant. The total consideration for the sale of the property was thereforee agreed at Rs. 1,16,100 at the time of the compromise.

5. In terms of the compromise the plaintiff deposited Rs. 50,000 in the Reserve Bank of India on December 25, 1973, But the defendant did not deliver possession o& land agreed to be sold.

6. The plaintiff-decree-holder made an application for the execution of the decree (I. A. 1779 of 1974) and the execution proceedings started. In his application the plaintiff sought possession of the land.

7. The defendant's principal objection to the delivery of possession was that there was no claim for possession in the original plaint and there was no decree for possession against him. He, thereforee, said that there cannot be an order for delivery of possession.

8. In the original plaint the plaintiff's claim was in these words:

'a decree directing the sale of the land in his favor be passed against the defendant ...........'

9. Chawla J. recorded the statements of the parties. Both of them agreed that a decree may be passed in favor of the plaintiff against the defendant. The only essential term of the compromise was, as I have mid, that the consideration was Rs. 1,16,100 instead of Rs. 66,100. Chawla J. decreed the suit on November 1, 1973 in terms of the compromise.

10. On January 14, 19,75, the plaintiff moved an application for the amendment of the original plaint (I. A. 166 of 1975). He sought leave to add the following:

'The plaintiff be also granted a decree for possession of the suit land and the possession of the same be delivered to him.'

11. Since the relief of possession was not included in the original plaint this was now sought to be added, by way of amendment. The defendant opposed this application. I allowed the amendment of the plaint on May 23, 1975 (Reported in Air 1976 Delhi 516).

12. The defendant appealed to the Division Bench against my order dated May 23, 1975. The Division Bench my order dated July 23, 1975 said that apart from the fact that the impugned order was not appealable, 'we see no ground to interfere on merits'. The appeal was dismissed at a preliminary hearing.

13. The defendant has now filed the written statement to the amended plaint. He has verbatim reproduced all the defenses which he originally took. The only new thing which he has said in the written statement is in paragraph 2 of his preliminary objections where the following words appear which were not there in the original written statement:

'The plaintiff has now added the prayer of possession.'

14. thereforee it comes to this. The suit for specific performance was compromised between the parties. The plaintiff had omitted to ask for the relief of possession. Under the Specific Relief Act, 1963 Section 22 makes it incumbent on a plaintiff to ask for possession of the property in addition to specific performance. Sub-section (2) of that section provides that if in a suit for specific performance the plaintiff has omitted to ask for the possession of the property in addition to the relief of specific performance no relief will be granted by the court unless it is specifically claimed. The effect of the section thereforee is that in a suit for specific performance prayer for possession must be distinctly and specifically made.

15. When in execution the plaintiff claimed possession the defendant raised a formidable objection. He said that possession could not be delivered as there was no prayer in the original plaint. Section 22 was the requirement of the new Act of 1963. There was no such provision in the Specific Relief Act of 1877. It seems that the lawyers had not familiarised themselves with the provisions of the new Act. These were the early days of the Act. thereforee this difficulty arose which came to notice subsequently in the course of the execution proceedings. By the amendment I allowed the prayer for possession to be added.

16. What is to be done now? Where do we go from here? This is the question. The plaint has been amended. Written statement has been filed to the amended plaint.

17. The counsel for the defendant submits that there should be now a full length trial of the suit since the compromise on which the decree of Chawla J. was based has now fallen through as there is an amendment of the plaint. It is said that by asking for amendment of the plaint the plaintiff has made it clear that he is no longer bound by the compromise. Parties have, it is said, gone back to the Initial stage and it is not open to the plaintiff to rely or lean upon the compromise.

18. The counsel for the defendant has elaborated his submission by saying that equitable considerations have in the meanwhile come into existence. The equitable considerations, he said, are that his plea with regard to fraud, misrepresentation etc. taken in the original written statement now calls for an investigation since the plaintiff himself has abandoned, the compromise and has gone back to the original plaint by asking for its amendment.

19. It appears to me that this objection is purely technical and arid. It is without merits. The plaintiff had forgotten or omitted to ask for the relief of possession in the plaint. All that I allowed is that I permitted the plaintiff to amend the prayer in the plaint.

20. When the compromise was made the defendant bad agreed not only to execute the sale deed but also to deliver possession to the plaintiff for the sum of Rs. 1,16,100. This is how I read the compromise. The counsel says that the defendant never agreed to deliver possession. All that he undertook was that he would execute the sale deed but not to deliver possession. I cannot subscribe to this reasoning. This will mean injustice. The plaintiff will get nothing. Delivery of possession is a necessary ingredient and part of transfer of ownership. In fact this is what specific performance means. It means taking possession of certain property and delivering it to a claimant: See Section 5 of the Specific Relief Act of 1877. The defendant knew that a decree for specific performance will mean that he will have to hand over possession of the land for the money he had agreed to receive. Now he cannot take advantage of a technical flaw. Equity looks on that as done which ought to be done. This is what I held in my order dated May 23, 1975.

21. The defendant himself has said before the court in execution proceedings that he was prepared to hand over possession. As he did not deliver possession I appointed a receiver who has since taken possession of the land from him. The defendant appealed against that order. It was upheld in appeal.

22. The counsel for the defendant has argued that now his objection to the suit in the present form is that such a suit is not maintainable in the civil court. The suit is barred, he says, by the provisions of Delhi Land Reforms Act of 1954. He has referred me to the decision of the Supreme Court in Hatti v. Sunder Singh, : [1971]2SCR163 .

23. This objection was taken by the defendant in the original written statement also. There he had said that

'the suit is barred by the provisions of the Delhi Land Reforms Act and is not maintainable and is liable to be dismissed. The answering defendants will be left with less than 8 Standard Acres of land which contravenes the provisions of law and bars the present suit.'

24. This objection was abandoned by the defendant when he compromised the suit. Again it was raised before me at the execution stage. I decided it on May 23, 1975 (1. A. 85 of 1975)* as well as in my order dated September 30, 1974.

25. I am thereforee of the view that the original compromise stands. It is binding on both parties. The compromise has not fallen through simply because the prayer for possession has been added to the claim of specific performance. I do not think any trial of the suit is necessary. Trial for what The defendant himself agreed to the compromise. He made a statement. In his own compromise petition dated October 31, 1973 (I. A. 2819 of 1973) he agreed to the 'decree for specific performance' being passed against him. He agreed to the 'sale price' of Rupees 1,16,100. He agreed to 'execute the sale deed' on payment of the further sum of Rs. 50,000. What does all this mean? I think this means that he agreed to sell the land. Sale does not mean merely a paper sale. It also means delivery of possession.

26. The remedy of specific performance was forged by the Court of Chancery in England. It is an equitable relief. Equity looks to the substance and not mere form. The kernel of the thing is the compromise for sale of land. In what words the claim in the plaint should be couched is essentially a mutter for lawyers. It relates to the form of the suit. The Act of 1963 says that a plaintiff must ask for both specific performance as well as possession. The addition of the prayer for possession does not alter the essence of the thing. For the consideration the plaintiff has paid he must have both the sale deed as well as delivery of possession. Claims of justice cannot be overlooked, only in this way I think law can the vindicated and justice can be done.

27. I would thereforee order that the defendant shall deliver possession of the land to the plaintiff. The suit is decreed in terms of the prayer made in the plaint.

28. This order will be by way of an addendum and erattum to the order of Chawla J. dated November 1, 1973. It is no more than an appendix or a supplement. This would have no meaning except by reference to the judgment and the compromise on which that judgment is founded.

29. The decree dated November 1, 1973 will be accordingly amended. In the decree after the words 'and accordingly the matter be and the same is hereby decreed in terms thereof' the following words shall be added:

'The plaintiff is also hereby granted a decree for possession of the suit land.'

30. In the circumstances of the case I leave the parties to bear their own costs.

31. Order accordingly.


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