Delhi High Court
Mujeeb Rehman vs Mohd Nabi & Ors on 12 October, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 12th October, 2017.
+ C.R.P. 66/2017
MUJEEB REHMAN ..... Petitioner
Through: Mr. D.K. Rustagi, Mr. Kapil Gulati, and
Mr. Mayank Rustagi, Advs.
Versus
MOHD NABI & ORS ..... Respondents
Through: Mr. Raj Kumar Chandiwal and Ms. Natasha
Rani Khudania, Advs. for R-1.
Mr. Joby P. Varghese, Adv. for R-2 to 5.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Revision Petition under Section 115 of the Code of Civil
Procedure, 1908 (CPC) impugns the order (dated 22 nd October, 2016 in CS
No.618819/16 (219/16) of the Court of Additional District Judge-09
(Central), Tis Hazari Courts, Delhi) of dismissal of the application of the
petitioner / defendant no.1 as well as the application of the respondents /
defendants no.2 to 4, both under Order VII Rule 11 of the CPC.
2. The petition was entertained and notice thereof ordered to be issued.
3. The counsel for the petitioner / defendant no.1, the counsel for the
respondent no.1 / plaintiff and the counsel for the respondents / defendants
no.2 to 5 have been heard.
4. The counsel for the respondents / defendants no.2 to 5 states that the
application filed under Order VII Rule 11 of the CPC was on behalf of all the
defendants no.2 to 5 who are respondents no.2 to 5 herein and not merely on
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behalf of defendants no.2 to 4 as erroneously recorded in the impugned
order.
5. The respondent no.1 / plaintiff instituted the suit from which this
petition arises, pleading (i) that the petitioner / defendant no.1 and the
respondent no.1 / plaintiff and six others had executed a Memorandum of
Understanding (MoU) dated 16th May, 2011 for purchase of properties
no.643-648 and 674-675 with freehold land total ad measuring 446.46 sq.
mtrs. situated in Gali Gurudwara, Farash Khana behind G.B. Road, Delhi
from the lawful owners thereof; (ii) that as per the MoU dated 16 th May,
2011, the respondent no.1 / plaintiff and six others were to invest their funds
for purchase of the property and the petitioner / defendant no.1 was not to
contribute any monies for purchase of the property; (iii) in pursuance to the
aforesaid MoU, Sale Deed dated 30th June, 2011 was executed by the owners
of the aforesaid properties in favour of the petitioner / defendant no.1; (iv)
that as per the MoU dated 16th May, 2011, the old construction on the
properties was demolished and new construction raised after obtaining
sanction from the concerned authorities; (v) the petitioner / defendant no.1,
the respondent no.1 / plaintiff and the aforesaid six others executed another
MoU dated 15th July, 2011 distributing share of each one in the newly
constructed property; (vi) that as per the said MoU dated 15 th July, 2011 (in
which petitioner/defendant No.1 was described as „party No.1‟ and the
respondent No.1/plaintiff was described as „party No.2‟), the petitioner /
defendant no.1 also, though had not contributed anything to the purchase
price of the property, was also allocated a share in the property and clause 2
of the said MoU dated 15th July, 2011 was as under:-
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―It is agreed that the party no.1 shall transfer and conveyed the
portion ½ undivided share in upper ground floor in property
bearing no.643 to 648 and 674 - 675, situated in Gali
Gurudwara, Farash Khana, behind G.B. Road, Delhi - 06, out of
total measuring 446.46 sq. mtr. without roof / terrace right as
per proposed site plan of the property and also the portion as ½
undivided share on the roof of the second floor of the property in
the name of the party no.2 Mohd. Nabi by registered sale deed
before the Sub-Registrar Delhi‖.
(vii) that though the petitioner / defendant no.1 in accordance with the
aforesaid MoU dated 15th July, 2011 has executed Sale Deeds of the portions
allocated to the five others in favour of the five others but has not executed
the Sale Deed of the portion allocated to the respondent no.1 / plaintiff and
one Mohd. Afaq, inspite of repeated requests; and, (viii) that on 18 th June,
2016, the respondent no.1 / plaintiff found construction activity to have
commenced in the portion of the property, which under the MoU clause
aforesaid, was to be allocated to the respondent no.1 / plaintiff and realised
that the petitioner / defendant no.1 has executed Sale Deeds of the said
portion in favour of the respondents / defendants no.2 to 5.
6. On the aforesaid pleas, the respondent no.1 / plaintiff, in the suit,
claimed the reliefs of (i) declaration that the Sale Deeds executed by the
petitioner / defendant no.1 in favour of the respondents / defendants no.2 to 5
are null and void and for cancellation thereof; (ii) mandatory injunction
directing the petitioner / defendant no.1 to transfer and execute the Sale Deed
in favour of the respondent no.1/plaintiff, in respect of the portion of the
property of the respondent no.1 / plaintiff‟s share in terms of MoU dated 15 th
July, 2011; and, (iii) permanent injunction restraining the petitioner /
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defendant No.1 and respondents/defendants No.2 to 5 from alienating,
encumbering or parting with possession of the said portion of the property
and from making any construction on the property.
7. The learned Additional District Judge has vide the impugned order
dismissed the identical applications of the petitioner / defendant no.1 and the
respondents / defendants no.2 to 5 under Order VII Rule 11 of the CPC inter
alia observing that the respondent no.1 / plaintiff under the garb of
mandatory injunction was seeking the relief of specific performance of the
Agreement to Sell dated 15th July, 2011 and since the respondent no.1 /
plaintiff on enquiry had disclosed the market value of the portion of the
property of which the respondent no.1 / plaintiff had sought Sale Deed in his
favour to be Rs.47,00,000/-, the respondent no.1 / plaintiff is liable to pay the
court fees on the amount of Rs.47,00,000/-.
8. On enquiry it is informed that the respondent no.1 / plaintiff has paid
the said deficient court fees.
9. I have enquired from the counsel for the respondent no.1 / plaintiff,
whether not the remedy of the respondent no.1 / plaintiff on the aforesaid
facts is to seek specific performance of the Agreement contained in MoU
dated 15th July, 2011.
10. The counsel for the respondent no.1 / plaintiff has at the outset drawn
attention to the order dated 19th December, 2016 in CRP No.206/2016 titled
Saniya S. Yusuf & Ors. Vs. Mohd. Nabi & Anr. preferred by the
respondents / defendants no.2 to 5 against the dismissal of their application
under Order VII Rule 11 of the CPC and which Revision Petition was
withdrawn with liberty "to press for framing of appropriate preliminary
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issues, as per law, before the Trial Court including on the alleged bar to the
suit under the provisions of the Benami Transactions (Prohibition) Act,
1988".
11. The mere fact that the respondents / defendants no.2 to 5 withdrew the
challenge made by them to the dismissal of their application under Order VII
Rule 11 of the CPC cannot come in the way of the challenge made by the
petitioner / defendant no.1 being considered on its own merits. It is not as if a
common application was filed by the petitioner / defendant no.1 and the
respondents / defendants no.2 to 5. Separate applications were filed, though
stated to be identical and dealt by a common order. It would have been a
different matter if Revision Petition preferred by the respondents /
defendants no.2 to 5 had been dismissed on merits. Mere withdrawal of the
Revision Petition by the respondents/defendants no.2 to 5 would not bar the
present Revision Petition.
12. Though the counsel for the respondent no.1 / plaintiff has not offered
any other answers save for stating that the respondent no.1 / plaintiff in fact
is seeking the relief of specific performance only and for which the requisite
court fees has been paid but having not found any averment in the plaint as
required to be made in a suit for specific performance by Section 16(c) of the
Specific Relief Act, 1963, I have enquired from the counsel for the
respondent no.1 / plaintiff whether there is any such plea.
13. The counsel also has been unable to state that there is any such plea.
14. The counsel for the petitioner / defendant no.1 states that there is none.
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15. The question which arises for consideration is, whether relief in the
nature of enforcement of the contractual obligations can be claimed by
seeking a mandatory injunction.
16. The Specific Relief Act, as per preamble thereto, was enacted to
define and amend the law relating to certain kinds of reliefs, and the specific
reliefs dealt in Part II thereof are of "Recovering Possession of Property",
"Specific Performance of Contracts", "Rectification of Instruments",
"Rescission of Contracts", "Cancellation of Instruments", "Declaratory
Decrees", in Chapters I to VI thereunder. Part III of the said Act titled
"Preventive Relief" is divided into "Injunctions Generally" and "Perpetual
Injunctions", in Chapters VII and VIII thereunder. Part I of the said Act
titled "Preliminary", in Section 4 thereof provides that specific relief can be
granted only for the purpose of enforcing individual civil rights and not for
the mere purpose of enforcing a penal law.
17. It will thus be seen that both, the law relating to specific performance
of contracts as well as the law relating to injunctions, are defined and
contained in the same Specific Relief Act.
18. The law relating to specific performance of contracts in Chapter II
under Part II of the Act prescribes, (a) the defences respecting suits for relief
based on contract; (b) cases in which specific performance of contract is
enforceable; (c) cases in which specific performance of contracts connected
with trusts is enforceable; (d) contracts which are not specifically
enforceable; (e) who may obtain specific performance; (f) personal bars to
the relief of specific performance, etc.
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19. Sections 36 & 37 of the Act in Chapter VII under Part III of the Act
titled "Injunctions Generally", inter alia provides that preventive relief is
granted by injunction, temporary or perpetual and that a perpetual injunction
can only be granted by the decree made at the hearing and upon the merits of
the suit and that the defendant is thereby perpetually enjoined from the
assertion of a right, or from the commission of an act, which would be
contrary to the rights of the plaintiff. Section 39 in Chapter VIII titled
"Perpetual Injunctions" under the said Part III is titled "Mandatory
Injunctions" and is as under:
―39. Mandatory injunctions.--When, to prevent the breach of
an obligation, it is necessary to compel the performance of
certain acts which the court is capable of enforcing, the court
may in its discretion grant an injunction to prevent the breach
complained of, and also to compel performance of the requisite
acts.‖
20. It will thus be seen that a mandatory injunction is to be granted to
prevent the breach of an obligation by compelling performance of certain
acts which the Court is capable of enforcing.
21. The word „obligation‟ is defined in Section 2(a) of the Act as
including "every duty enforceable by law".
22. The definition of the word „obligation‟, would cover an obligation
under a contract which is enforceable by law. Read in this fashion, when to
prevent the breach of an obligation under a contract, it is necessary to
compel the performance of certain acts, mandatory injunction can be
granted. On a plain/literal reading, thus it cannot be said that mandatory
injunction cannot be granted to compel performance of certain acts to
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prevent breach of an obligation of the defendant under a contract with the
plaintiff.
23. The same would however result in a situation where a plaintiff having
a contract with the defendant, an obligation under which contract the
defendant is in breach of, having a choice, either to sue for specific
performance of the contract under Chapter II of Part II of the Specific Relief
Act or to sue for mandatory injunction under Chapter VIII of Part III of the
same Act.
24. I have however wondered that if that was so, what was the need for the
Legislature, while enacting the Specific Relief Act, to provide separately for
specific performance of contracts and mandatory injunctions.
25. Interpreting so, not only has the Legislature so provided for two
separate remedies for the same grievance/relief but made detailed provisions
under the respective Chapters with respect thereto. For instance, under the
Chapter relating to specific performance of contracts, as aforesaid, it is
prescribed which contracts can be specifically enforced and which cannot,
who can obtain specific performance and against who all, who is barred from
claiming the relief of specific performance (and which inter alia bars a
person who fails to aver and prove that he has performed or has always been
ready and willing to perform the essential terms of the contracts which are to
be performed by him) and the practices to be followed by the Court in
granting or refusing the relief of specific performance of the contract; no
such detailed provisions are to be found in the Chapter relating to
injunctions, save in Section 41 which lists the cases in which injunction
cannot be granted.
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26. Not only does the Specific Relief Act enact separately with respect to
relief of specific performance of contracts and injunctions but the Court Fees
Act, 1870 and the Suits Valuation Act, 1887 also separately provide for
valuation of the reliefs of specific performance of contracts and injunctions,
for the purposes of court fees and pecuniary jurisdiction.
27. If it were to be held that the plaintiff aforesaid has a discretion,
whether to sue for specific performance of contract or to sue for perpetual
mandatory injunction, it would lead to complexities viz. whether the
provisions in the Specific Relief Act under the Chapter pertaining to specific
performance of contracts are to be applied when relief claimed is of
mandatory injunction to compel performance of certain acts under a contract
of which the defendant is in breach of, and whether to value the suit for the
purposes of court fees and jurisdiction as provided for a suit for mandatory
injunction or as provided for a suit for specific performance of contract.
28. The Legislature, while enacting the same Act, cannot be assumed to
have created the anomaly aforesaid. The only way, in my opinion, to
interpret the aforesaid two Chapters of the Specific Relief Act, by applying
the principles of interpretation of statutes of "a construction giving rise to
anomalies should be avoided" and "avoiding uncertainty and friction in the
system which the statute purports to regulate", is by holding that the
obligations, to prevent breach whereof performance of certain acts can be
compelled by issuing a decree for mandatory injunction, are obligations in
law, other than those under a contract. If the obligation is under a contract
and performance of certain acts which the defendant has undertaken to do
under the contract, has to be compelled, the remedy to be invoked would
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have to be under the Chapter relating to specific performance of contracts
and not under the Chapter of mandatory injunction.
29. This becomes clear from Section 41 supra, clause (e) whereof provides
that injunction cannot be granted to prevent the breach of a contract the
performance of which would not be specifically enforced and also from
clause (h) thereof which provides that an injunction cannot be granted when
equally efficacious relief can certainly be obtained by any other usual mode
of proceeding except in case of breach of trust.
30. The same Act having provided the efficacious relief of performance of
certain acts undertaken to be done under a contract, by suing for specific
performance of contract, clause (h) of Section 41 would bar the grant of
mandatory injunction to compel performance of act undertaken to be done
under a contract. Clause (e) of Section 41 also bars specific performance of
a contract which is impermissible under the Chapter of the Specific Relief
Act pertaining to specific performance of contracts, by grant of mandatory
injunction.
31. Section 42 of the Act under the Chapter relating to perpetual
injunctions however opens a limited window and provides for cases relating
to contracts in which injunction can be granted and is as under:
"42. Injunction to perform negative agreement.--
Notwithstanding anything contained in clause (e) of section 41,
where a contract comprises an affirmative agreement to do a
certain act, coupled with a negative agreement, express or
implied, not to do a certain act, the circumstances that the court
is unable to compel specific performance of the affirmative
agreement shall not preclude it from granting an injunction to
perform the negative agreement:
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Provided that the plaintiff has not failed to perform the
contract so far as it is binding on him.‖
The same permits injunction to enforce negative covenant in a
contract, even though the contract is not specifically enforceable.
32. I thus conclude, that for seeking performance of contractual acts of
which the defendant is in breach of, the relief of mandatory injunction
cannot be granted.
33. The reasoning of the learned ADJ in the impugned order, of the
respondent No.1/plaintiff claiming relief of specific performance in the garb
of injunction, cannot thus be accepted. Though suing under a wrong
nomenclature is merely an irregularity and is curable/ignorable but as I have
already noticed above, the suit as framed is not in accordance with law
relating to specific performance of contracts. Moreover, even if the
respondent No.1/plaintiff is permitted to proceed with the suit, treating it in
fact as for the relief of specific performance of contract and in the garb of
mandatory injunction, the plaint in the suit will then have to be rejected
and/or the suit be dismissed for the reason of being not compliant with
Section 16(c) supra. Moreover, the relief of mandatory injunction claimed,
as aforesaid, is barred by Section 41(h) supra of the Specific Relief Act.
34. The respondent No.1/plaintiff, in the suit from which this petition
arises, besides claiming the relief of mandatory injunction, has also claimed
the relief of declaration of the sale deeds executed by the
petitioner/defendant No.1 in favour of the respondents/defendants No.2 to 5
as null and void and for cancellation thereof as also the relief of restraining
the defendants in the suit from dealing with the property. However once the
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respondent No.1/plaintiff is not found entitled to the relief in the garb of
mandatory injunction, of specific performance, the respondent No.1/plaintiff
otherwise has no locus to seek declaration with respect to and for
cancellation of the sale deeds with respect to the property and/or to restrain
the defendants from dealing with the property. Only if the respondent
No.1/plaintiff enforces the rights which he claims with respect to the
property, would the question of annulment of the rights created in the
property in negation of the rights claimed by the respondent No.1/plaintiff
and/or of restraining dealing with the property in contravention thereof,
arise.
35. I may in this respect also state that the relief claimed by the
respondent No.1/plaintiff in the suit for cancellation of the sale deeds
executed by petitioner/defendant No.1 in favour of the
respondents/defendants No.2 to 5, besides the relief of mandatory injunction
is also contrary to the provisions contained in the Chapter pertaining to
specific performance of contracts in Specific Relief Act. Supreme Court as
far back as in Lala Durga Prasad Vs. Lala Deep Chand AIR 1954 SC 75
was concerned with the proper form of the decree where the defendant, in
breach of contract pertaining to transfer of immoveable property to the
plaintiff, has transferred/conveyed the property to others. Supreme Court
noticed that the practice of Courts in India was not uniform and three distinct
lines of thought emerged. According to one point of view, the proper form
of decree was to declare the subsequent purchase void as against the plaintiff
and direct conveyance by the transferor defendant alone in favour of the
plaintiff; a second point of view considered that both, the defendant who had
entered into the contract with the plaintiff and the defendant to whom the
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property had been transferred in breach of the contract should join in
conveying/transferring the property to the plaintiff; the third point of view
was of the defendant to whom the property had been transferred in breach of
contract with the plaintiff, alone being directed to convey the property to the
plaintiff. It was held that the proper form of decree is to direct the defendant
who had contracted to convey the property to the plaintiff to convey/transfer
the same to the plaintiff and to further direct the subsequent transferee to
join in the said transfer so as to pass on the title which resides in them to the
plaintiff. The same is provided in Section 19(b) under the Chapter pertaining
to specific performance of contracts in the Specific Relief Act by providing
that the specific performance of a contract may be enforced against any
other person (not a party to the contract) claiming under the party to the
contract by a title arising subsequently to the contract.
36. It would thus be seen that if the respondent No.1/plaintiff were to sue
for the relief of specific performance of contract instead of for mandatory
injunction, there is no need for the respondent No.1/plaintiff to separately
claim the relief of cancellation of the sale deeds executed by the
petitioner/defendant No.1 in favour of the respondents/defendants No.2 to 5.
37. I thus conclude the suit filed by the respondent No.1/plaintiff, in the
form filed, to be not maintainable and to be barred by law, as aforesaid and
which would qualify as a ground for rejection under Order VII Rule 11(d) of
the CPC.
38. Though the averments of the defendants are not to be considered at the
stage of consideration of application under Order VII Rule 11 of the CPC, I
may record that the counsel for the petitioner / defendant no.1 disputes the
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MoUs aforesaid and has also contended that there is no mention thereof in
the Sale Deeds in favour of the five others aforesaid and which Sale Deeds
are for a consideration as mentioned therein. It is yet further contended that
the respondent no.1 / plaintiff in the plaint has nowhere given particulars of
the monies claimed to have been invested by him and has sought execution
of the Sale Deed in his favour without any consideration.
39. The petition thus succeeds.
40. The impugned order dated 22nd October, 2016 is set aside.
41. Axiomatically, the application of the petitioner / defendant no.1 under
Order VII Rule 11 of the CPC is allowed and the plaint in the suit from
which this petition arises is rejected.
42. Since the respondent no.1 / plaintiff, under the impugned order which
has been set aside, has been made to pay additional court fees, it is also
directed that on the respondent no.1 / plaintiff taking requisite steps, a
certificate entitling the respondent no.1 / plaintiff to obtain refund of 90% of
the court fees paid in pursuance to the impugned order which has been set
aside shall be issued by the Suit Court, entitling the respondent no.1 /
plaintiff to such refund.
No costs.
RAJIV SAHAI ENDLAW, J.
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