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Sec. 12 of S.R Act to be construed in a liberal, purposive manner that is fair &promotes justice-SC


CIVIL APPEAL NOS. 3575-3577 OF 2009. September 18, 2020, New Delhi.

Corom: Justice Uday Umesh Lalit, Justice Indira Banerjee.

Counsel of Appellant: Mr. Gowtham,

Counsel of Respondents: Mr. Radhakrishnan (on behalf of D. Sarala), Mr. Navare (on behalf of Pratap Reddy)

The Appellant Nos. 1 & 2 has bought 300 square yards of land with the survey no. 262 in Hayathnagar Village, Ranga Reddy District on the date 20 Aug 1982. On which 100 sq yards was sold to the respondent, Pratap Singh by the appellant no. 1 for Rs. 3000 and the possession was also been taken by Pratap Reddy by paying Rs. 2500 in advance. The written agreement for the same was also made with the payment of the balance Rs. 5000 on Jan 1984whereas the sale deed was not executed. The vendor that is Appellant No. 1 and his husband entered into an agreement on the date 21st March 1984, with the vendee D. Sarala for sale of the suit for Rs. 75,000 and the vendor have also claimed that they have informed about the sale consideration of 100 sq. Yards to Pratap Reddy. The Vendee assured that the agreement between Pratap Reddy was cancelled and there is no need to include this sale agreement in the agreement. After two months the vendor, her husband and Pratap Reddy alleged the interference of vendee in Pratap’s possession. On 22nd June the vendor’s husband lodged a complaint on missing sale deed and other documents in the police station.

A suit was filed by the vendee contending that the document had been handed by the vendor to vendee on which Pratap Reddy was also added as the third defendant. A suit was filed by Pratap Reddy also in the District Munsif seeking a perpetual injunction. In the suit which Pratap Reddy filed he stated that he sale between the vendor and the vendee was unaware to him and this as defended by the vendee by stating that the agreement between the vendor and Pratap was null and void. A written statement was also been filed by the vendor and her husband on the specific performance of the sale deed.

These three suits were transferred to the Additional District Court of Rangareddy District.On 30th March 1994, the learned District Judge disposed all three suits and stated that the suit of specific performance was allowed and the vendee was not allowed to seek specific performance of the agreement in respect to 100 sq yards. The declaration against Pratap Reddy as non- joinder was also dismissed. Further Rs. 5000 was imposed to pay by the vendee to the vendor along with the remaining Rs. 40,000.

Being aggrieved by the Judgment of the District Court an appeal was made by the Vendee in the High Court. On Sep 7th 2006, the High Court also dismissed all the appeals and confirmed the Judgment passed by the Trial Court.

Mr Gowtham has appeared for the appellant argued that as the vendor agreed to register the sale deed in favour of the vendee and the full payment was not made. He stated that the sale agreement was conditional upon the cancellation of the agreement with Pratap Reddy. He also stated that the sale of 300 sq yards was composite agreement and since it was not possible to sell 400 sq. Yards to the vendee it became infructuous and incapable of specific performance. Hence it was stated by Mr Gowtham that the in case of absence of readiness and willingness in the favour of vendor it is not possible to sell 300 sq yards to the vendee. The above argument was contended by the vendor and her husband stating that they have not refused to execute the registered Sale deed. It was stated that “Time being the essence to the agreement; it could not be specifically enforced”.

Mr Navare on behalf of Pratap Reddy stated that the vendee was aware of the registered sale deed executed in favour of Pratap by the vendor but yet a suit was filed by the vendee for specific performance of the suit. He also stated that without impleading the vendor, the vendee filed a second suit against Pratap for sale deed was void and stated that Pratap was not the original owner in the execution of a deed of conveyance in favour of the vendee and cited Durga Prasad and Anr. v. Deep Chand and Ors. He submitted that the second suit was also hit by Order Ⅱ Rule 2, and was thus barred under the law. In any case, the second suit filed by the Vendor was only a declaration and there was no prayer for any consequential relief. The second was thus hit by section 34 of the Special Relief Act, 1963.

The Court observed that,

The relief of the specific performance of an agreement, was at all material times, equitable, discretionary relief, governed by the provisions of the Specific Relief Act 1963, hereinafter referred to as S.R.A. even though the power of the Court to direct specific performance of an agreement may have been discretionary, such power could not be arbitrary. The discretion had necessarily to be exercised in accordance with sound and reasonable judicial principles (para 67).

Hence the Court is obliged to enforce specific performance of a contract. Also the sub sections of section 11, 14, and 16 of S.R.A are also not discretionary after the amendment. However section 12 of S.R.A states few exceptions where the Court might direct specific performance of a contract in part.

The Court stated that a registered deed of conveyance takes effect, as regards the property comprised therein, against very unregistered deed relating to the same property as provided in section 50 of the Registration Act (para 77).

Section 21 of the Limitation Act states the effect of substituting or adding new plaintiff or defendant. And therefore the Court by adding Pratap Reddy as defendant did not make directions in sec 21(1) of the Limitation Act.

Section 12 has to be construed in a liberal, purposive manner that is fair and promotes justice. A contractee who frustrates a contract deliberately by his own wrongful acts cannot be permitted to escape scot free (para 88).

The Court also stated that the Court is unable to agree with Mr. Navare’s argument that the court is under an obligation to reject the subsequent suit, irrespective of whether objection of bar under Order Ⅱ Rule 2 of the CPC was raised or not.

The Court held that the plea of bar under Order Ⅱ Rule 2 of the CPC is a technical plea which has to be pleaded and satisfactory established. In R.A. Oswal v. Deepak Jewellers and Ors., this Court held that if the plea bar under Order Ⅱ Rule 2 is not taken, the Court should suo moto decide the plea. Moreover in Dalip Singh v. Mehar Singh Rathee and Ors., the Court held that plea cannot be raised before this court if not raised in High Court (para 93).

The Court held that no such infirmity in the judgment and order of the High Court under appeal, confirming the judgment and order of the Trial Court, that calls for the interference of the Court. The High Court has rightly dismissed the appeals from the judgment of the Trial Court.

These appeals are, therefore, dismissed.

-K. Ilakkiya

View/ Download the Judgment: B. SANTHOSHAMMA & ANR. V. D. SARALA & ANR.



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