Shelter cannot be taken under section 149 of CPC when suit is filed only as one for mandatory injunc

Atma Ram Vs Charanjit singh Special Leave Petition (C) No.27598 of 2016 FEBRUARY 10, 2020

The bench comprising of Hon’ble Justice V. Ramasubramanian and Hon’ble Justice N.V Ramana pronounced the Judgment.

Fact

An agreement of sale was entered between the petitioner and respondent, the respondent agreed to sell to the petitioner, the land and factory premises at Plot No.90, Sector­21, Industrial Area, Bhiwani. But the responded failed to execute the agreement. The petitioner filed a suit for mandatory injection in Trail Court. The petitioner valued the suit only at Rs 250 and paid a fixed court fee of Rs 25. The Trial Court construed it as suit for specific performance and issued a decree, but which was upset by First Appeal Court and confirmed by Second Appeal High Court. The petitioner came up with this special leave petition.

The learned counsel for petitioner contented that, Trial Court chose to treat the suit for mandatory injunction as one for specific performance and directed the petitioner to pay the deficit court fee and that the petitioner also complied with the said order. Therefore, it is contended that by virtue of Section 149 of the Code of Civil Procedure, such payment would have the same force and effect as if such fee had been paid in the first instance itself. But, the High Court held the suit as time barred. It is his further contention that the effect of Section 16(c) of the Specific Relief Act, 1963 was not considered in the proper prospective by the High Court with particular reference to the facts of the case and that, therefore, the judgment of the High Court stood vitiated.

Respondent questioned the maintainability of the suit in the form in which it was filed. The respondent further claimed that the suit was barred by limitation. The respondent also took out an application for the dismissal of the suit on the ground that a suit for mandatory injunction was not maintainable for enforcing specific performance of an agreement of sale.

The court observed that;

if the suit was actually one for specific performance, the petitioner ought to have at least valued the suit on the basis of the sale consideration mentioned in the agreement. But he did not. If the suit was only for mandatory injunction (which it actually was), the only recourse open to the petitioner was to seek an amendment under Order VI, Rule 17 CPC. If such an application had been filed, it would have either been dismissed on the ground of limitation (K. Raheja Constructions Ltd., vs. Alliance Ministries1) or even if allowed, the prayer for specific performance, inserted by way of amendment, would not have been, as a matter of course, taken as relating back to the date of the plaint (Tarlok Singh vs. Vijay Kumar2, Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit vs. Ramesh Chander3).

 Therefore, a shortcut was found by the petitioner/plaintiff to retain the plaint as such, but to seek permission to pay deficit court fee, as though what was filed in the first instance was actually a suit for specific performance. Such a dubious approach should not be allowed especially in a suit for specific performance, as the relief of specific performance is discretionary under Section 20 of the Specific Relief Act, 1963.

Therefore, the special leave petition is dismissed.

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Aarthy K

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