Punjab-Haryana High Court
Deep Raman Singh vs Ashwani Kumar And Others on 23 August, 2010
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CR No.6476 of 2009 (O&M) 1
In the High Court for the States of Punjab and Haryana at Chandigarh.
Decided on August 23,2010.
Deep Raman Singh --Appellant
vs.
Ashwani Kumar and others -- Respondents
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
Present: Mr.M.L.Saggar,Sr.,Advocate, with
Mr.C.L.Verma,Advocate,for the appellant
Mr.B.R.Mahajan,Advocate,for respondent No.1.
Rakesh Kumar Jain, J (Oral)
This appeal is directed against the order passed by learned trial Court dated 13.8.2009, by which an application filed by the plaintiff under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short,the CPC) has been allowed subject to payment of Rs.1000/- as costs.
Plaintiff's case is that on 12.11.2003, there were negotiations between the plaintiff and Tej Pal Singh Kang (respondent No.1) who was defendant No.1. before the Court below for purchase of House No. 3293, Sector 21-D, Chandigarh for an amount of Rs. 53,00,000/- (Rs.Fifty three lacs only). A sum of Rs.50,000/- was paid on that date against receipt which was signed by Tej Pal Singh Kang and two witnesses namely, Deepak Saini and Ravinder Kumar. As per this receipt, it was agreed by CR No.6476 of 2009 (O&M) 2 the parties that the agreement shall be executed within one week's time and 10% of the consideration amount would be paid to the defendants. The last date of the bargain was fixed as one month from the date of issuance of 'No Objection Certificate' and all the expenses were agreed to be borne by the petitioner/purchaser and all the dues regarding issuance of ' No Objection Certificate' were to be borne by the seller/defendants. The purchaser was free to get the sale deed executed either in his name or in the name of any other person. On 18.11.2003, Tej Pal Singh Kang (Seller) received another sum of Rs.5,00,000/- from the petitioner towards earnest money. The said receipt was signed by Tej Pal Singh Kang, his wife Gurvinder Kaur and Deep Raman Singh (petitioner herein) and the aforesaid two witnesses. Name of Jaswant Singh Kathuria was mentioned in the receipt but he did not sign. According to the respondents, agreement to sell was executed on 18.11.2003 by three persons namely Tej Pal Singh Kang, his wife Gurvinder Kaur, Deep Raman Singh and was given for the purpose of signatures to Jaswant Singh Kathuria but the same could not be signed as he was not well. It is submitted that although the property is owned by Tej Pal Singh Kang and Jaswant Singh Kathuria in ½ share each yet according to the learned counsel for the respondents, the petitioner/seller and Tej Pal Singh etc. were secretly negotiating for the purpose of sale of the property in question at a higher rate and therefore, the suit for permanent injunction was filed in which temporary injunction was granted by the Court on 16.4.2003.
In the written statement, the seller denied the execution of the agreement dated 18.11.2003 as well as the receipt. The respondent/plaintiff then filed an application under Order 6 Rule 17 of Code of Civil CR No.6476 of 2009 (O&M) 3 Procedure,1908 (for short, the CPC) to amend the suit from permanent injunction to a suit for specific performance on 20.9.2005 and during the pendency of the said application, filed a separate suit against Tej Pal Singh, and his wife Gurvinder Kaur on 23.5.2006 for specific performance of the agreement to sell dated 18.11.2003 which according to the respondent/plaintiff was separately executed with them with regard to ½ share of the suit property. The respondent/plaintiff then filed an application dated 11.12.2008 for withdrawing the present suit against defendant Nos.1,2 and 4. The suit was withdrawn against defendant No. 1 and 2. Suit against defendant No.4 was also withdrawn as there were no signatures on receipt dated 18.11.2003. Thus the suit remained only against defendant No.3, who is the petitioner before this Court.
The trial Court by virtue of the impugned order allowed the application of the respondents on the ground that since limitation to file suit for specific performance has not expired, therefore, the suit for permanent injunction can be converted into a suit for specific performance. In this regard, the Court has relied upon a decision of this Court in the case of Kuljit Singh Vs. Sukhdev Singh and others 2009 (2) P.L.R.682.
Mr.M.L.Saggar, learned Senior counsel appearing for the petitioner has submitted that the impugned order suffers from patent irregularity and illegality and is liable to be set aside. He has submitted that amendment sought is prima facie fraudulent because the plaintiff has specifically mentioned in para No.3 of the suit filed against Tej Pal Singh Kang that "according to condition No.7 the last date for the completion for the bargain was fixed as 20.12.2003 and the defendants were to deliver actual vacant and physical possession of first and second floors to the CR No.6476 of 2009 (O&M) 4 plaintiff as represented by the defendants that they have become owners of first and second floors to the extent of ½ share and the said portion of first and second floors have fallen to their share in partition with the other co- owners".
It is further submitted that deal by virtue of receipt dated 12.11.2003 and 18.11.2003 were struck only with Tej Pal Singh and his wife Gurvinder Kaur in respect to their half share and there was no deal with respect to other property as Token Money was given to Tej Pal Singh Kang and in addition thereof Rs.5,00,000/- was paid on 12.11.2003. He further submits that the suit for specific performance by itself is not maintainable as it was barred by Order 2 Rule 2 of CPC because the remedy to file suit for specific performance was also available which ought to have been taken by the plaintiff at the time when the suit for permanent injunction was filed.
In reply, learned counsel for the respondents has submitted that insofar as the allegation of the defendants that the amendment is fraudulent or not is concerned, that can be seen by the Court at the time of appreciation of evidence led by the parties. It is further submitted that no cause of action has accrued to file the suit as the defendant had not taken 'No Objection Certificate" from the Estate Office for the purpose of execution of the sale deed as he was trying to dispose of the suit property secretly and the plaintiff was well within his right to file the suit for permanent injunction and now he has submitted the application for converting the suit from permanent injunction to a suit for specific performance. He has relied upon judgments of this Court in the cases reported as Kuljit Singh Vs. Sukhdev Singh and another 2009 (3) CR No.6476 of 2009 (O&M) 5 R.C.R.(Civil) 751; Col.Satwant Singh Vs.Smt.Uma Bakshi 2009 (5) R.C.R.(Civil) 571 and a judgment of the Supreme Court in the case of Rajkumar Gurawara (Dead) Thr. LRs Vs. M/s.S.K.Sarwagi & Co.Pvt.Ltd and another 2008 (4) R.C.R.(Civil) 824.
I have heard both learned counsel for the parties and perused the record with their assistance.
The question involved in this appeal is as to whether a suit for permanent injunction can be converted into a suit for specific performance if the suit for specific performance is within limitation ?. The question has been answered by this Court in Col. Satwant Singh's Case (Supra) and Kuljit Singh's Case (Supra) in which it has been held that a suit for permanent injunction can be converted into a suit for specific performance to avoid multiplicity of litigation because in case of refusal, the petitioner can file a suit for specific performance separately.
No judgment to the contrary has been referred to by learned for the petitioner. Insofar as the case set up for converting the suit from permanent injunction into a suit for specific performance is concerned, that would be seen by the trial Court at the time of trial and if the suit is found to be false and frivolous, the trial Court is not powerless to impose exemplary costs for vexatious claim set up by the plaintiff, if any.
In view of the above, I do not find any merit in the present revision petition and the same is hereby dismissed.
August 23,2010 (Rakesh Kumar Jain)
RR Judge
CR No.6476 of 2009 (O&M) 6