Madras High Court
Srikandaswamy Permanent Fund Ltd vs B.M. Sivanarayanan Sah on 28 February, 2014
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.02.2014
Coram:
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
A.No.5971 of 2013
in
C.S.No.860 of 2008
SRIKANDASWAMY PERMANENT FUND LTD. .. Petitioner
vs.
B.M. SIVANARAYANAN SAH
169 NEW NO.28 SINGARA CHETTY ST
CHINTADRIPET CHENNAI .. Respondents
For Petitioner : Mr.Ashok Menon
For Respondent-1 : Mr.T.Vasu
ORDER:
R.S.RAMANATHAN, J The Judgment Debtor in C.S.No.860 of 2008, aggrieved by the order of the learned Master in Ordering delivery of possession in A.No.4324 of 2013 in E.P.No.21/2012, dated 22.11.2013, filed this Application.
2. To appreciate the background of the case, the following facts are necessary:-
C.S.No.860 of 2008 was filed by the respondent, for specific performance of an agreement of sale dated 23.9.2004, directing the applicant herein to execute the registered sale deed in respect of the suit property and for injunction. The suit was decreed as prayed for. Thereafter, E.P.No.21 of 2012 was filed by the decree holder to execute the sale deed pursuant to the decree passed in C.S.No.860 of 2008 and the sale deed was executed. Subsequently, the decree holder filed Application No.4324 of 2013 in E.P.No.21 of 2012 for delivery of possession of the property conveyed under the sale deed and that application was opposed by the applicant stating that the decree holder did not pray for delivery of possession while filing the suit and the suit was decreed only in respect of the execution of the sale deed as per the agreement of sale and therefore, in the absence of any prayer for recovery of possession, the decree holder is not entitled to claim recovery of possession and he has to file a separate suit for recovery of possession if so advised. That contention was negatived by the learned Master and delivery of possession was ordered and aggrieved by the same, this Application is filed.
3. Mr. Ashok Menon, learned counsel appearing for the applicant/judgment debtor submitted that as per Section 22(2) of the Specific Relief Act, 1963, no relief for possession or partition and separate possession of the property in addition to such performance shall be granted by the Court unless it has been specifically claimed. Therefore, Section 22(2) of the Specific Relief Act, 1963, prohibits the grant of possession if the same has not been sought for while filing the suit and as per proviso of sub-section 2 of Section 22 of the Act, it is open to the decree holder to apply to the Court to amend the plaint on such terms as may be just for including a claim for such relief at any stage of the proceedings and therefore, without amending the prayer in the decree, the decree holder is not entitled to recover possession. In this case, no application for amendment of the relief of possession was sought for and therefore, in the absence of such relief for possession by way of amendment, the possession ought not to have been granted and therefore, the Order is liable to be set aside. He also relied upon the judgment of this Hon'ble court reported in 2012 (4) LW 729 in the matter of Duraisamy v. V.P.Periyasamy Gounder and 5 others and also the judgment reported in AIR 2001 Supreme Court 3712 in the matter of Adcon Electronics Pvt.Ltd., v. Daulat and another.
4. On the other hand, Mr.Srirampanchu, learned Senior Counsel, appearing for the respondent/decree holder submitted that in a suit for specific performance, the relief of possession is inherent and even in the absence of any such prayer, after getting the sale deed executed, the purchaser, namely, the decree holder is entitled to seek for recovery of possession and there is no need for any amendment of the relief sought for in respect of possession. He also relied upon the judgments reported in (1982) 1 Supreme Court Cases 525 in the matter of Babu Lal v. M/s.Hazari Lal Kishori Lal and others, 2007 (3) CTC 529 in the matter of S.Sampoornam and another v. P.V.Kuppuswamy and 8 others, and 2012-1-LW.463 in the matter of Krishnamurthy Gounder vs. Venkatakrishnan & others, in support of his contention. He, therefore, submitted that the learned Master rightly allowed the Application and there is no need to interfere with the order of the learned Master.
5. The question to be decided in this Application is in the absence of any relief for recovery of possession while filing the suit for specific performance, can the decree holder apply for possession at the stage of execution without amending the relief in the decree or in the plaint?
6. It is seen from Section 22 of the Specific Relief Act, 1963, an option is given to the person suing for specific performance of the contract for the transfer of immovable property to apply for possession or partition or separate possession in addition to such performance, in an appropriate case. It is further appreciated under sub-section 2 of Section 22 that no relief under clause (a) or (b) shall be granted by the court unless it has been specifically claimed and at any stage of the proceedings, any such relief can be asked by amending the plaint on such terms.
7. Therefore, a bare reading of Section 22 of the Specific Relief Act, 1963, gives an impression that when possession was not sought for while praying for specific performance of a contract, the Court has no power to grant possession unless relief is amended as per proviso to sub-section 2 of Section 22 of the Act. The scope of Section 22 of the Act was considered by the Hon'ble Supreme Court in the judgment reported in (1982) 1 Supreme Court Cases 525 supra wherein the Hon'ble Supreme Court held as follows:-
"12. The section enacts that a person in a suit for specific performance of a contract for the transfer of immovable property, may ask for appropriate reliefs, namely, he may ask for possession, or for partition, or for separate possession including the relief for specific performance. These reliefs he can claim, not-withstanding anything contained in the Code of Civil Procedure, 1908, to the contrary, Sub-section (2) of this section, however, specifically provides that these reliefs cannot be granted by the Court, unless they have been expressly claimed by the plaintiff in the suit. Sub-section (2) of the section recognised in clear terms the well-established rule of procedure that the court should not entertain a claim of the plaintiff unless it has been specifically pleaded by the plaintiff and proved by him to be legally entitled to. The proviso to this sub-section (2), however, says that where the plaintiff has not specifically claimed these reliefs in his plaint, in the initial stage of the suit, the court shall permit the plaintiff at any stage of the proceedings, to include one or more of the reliefs, mentioned above by means of an amendment of the plaint on such terms as it may deem proper. The only purpose of this newly enacted provision is to avoid multiplicity of suits and that the plaintiff may get appropriate relief without being hampered by procedural complications.
13. The expression in-sub-section (1) of section 22 'in an appropriate case' is very significant, The plaintiff may ask for the relief of possession or partition or separate possession 'in an appropriate case'. As pointed out earlier, in view of order 2, rule 2 of the Code of Civil Procedure, some doubt was entertained whether the relief for specific performance and partition and possession could be combined in one suit; one view being that the cause of action for claiming relief for partition and possession could accrue to the plaintiff only after he acquired title to the property on the execution of a sale deed in his favour and since the relief for specific performance of the contract for sale was not based on the same cause of action as the relief for partition and possession, the two reliefs could not be combined in one suit. Similarly, as a case may be visualized where after the contract between the plaintiff and the defendant the property passed in possession of a third person. A mere relief for specific performance of the contract of sale may not entitle the plaintiff obtain possession as against the party in actual possession of the property. As against him, a decree for possession must be specifically claimed or such a person is not bound by the contract sought to be enforced. In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simpliciter without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree against him completely he, is bound not only to execute the sale-deed but also to put the property in possession of the decree-holder. This is in consonance with the provision of section 55 (1) of the Transfer of Property Act which provides that the seller is bound to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature admits.
14. There may be circumstances in which a relief for possession cannot be effectively granted to the decree- holder without specifically claiming relief for possession, viz., where the property agreed to be conveyed is jointly held by the defendant with other persons. In such a case the plaintiff in order to obtain complete and effective relief must claim partition of the property and possession over the share of the defendant. It is in such cases that a relief for possession must be specifically pleaded.
15. In the instant case, it is pointed out on behalf of the petitioner that the possession was not with the respondents Nos. 6 to 9 but was with a third person namely, the petitioner, who was subsequent purchaser and, therefore. this was an appropriate case where the relief for possession should have been claimed by the plaintiff-respondents Nos. 1 to 5.
16. It may be pointed out that the Additional Civil Judge had decreed the suit for specific performance of the contract. The High Court modified decree to the extent that the sale deed was to be executed by respondents Nos. 6 to 9 together with the petitioner. In short, the decree was passed by the High Court not only against respondents Nos. 6 to 9 but also against the subsequent purchaser i.e., the petitioner and thus the petitioner was himself the judgment debtor and it cannot be said that he was a third person in possession and, therefore, relief for possession must be claimed The contention on behalf of the petitioner is that the relief for possession must be claimed in a suit for specific performance of a contract in all cases'. This argument ignores the significance of the words 'in an appropriate case'. The expression only indicates that it is not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for specific performance of a contract for the transfer of the immovable property. That has to be done where the circumstances demanding the relief for specific performance of the contract of sale embraced within its ambit not only the execution of the sale deed but also possession over the property conveyed under the sale deed. It may not always be necessary for the plaintiff to specifically claim possession over the property, the relief of possession being inherent in the relief for specific performance of the contract of sale. Besides, the proviso to sub-section (2) of section 22 provides for amendment of the plaint on such terms as may be just for including a claim for such relief 'at any stage of the proceedings'.
17. The word 'proceeding' is not defined in the Act. Shorter Oxford Dictionary defines it as "carrying on of an action at law, a legal action or process, any act done by authority of a court of law; any step taken in a cause by either party". The term 'proceeding' is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word 'proceeding' in section 22 includes execution proceedings also. In Rameshwar Nath v. Uttar Pradesh Union Bank such a view was taken. It is a term giving the widest freedom to a court of law so that it may do justice to the parties in. the case. Execution is a stage in the legal proceedings. It is a step in the judicial process. It makes a stage in litigation. It is a step in the ladder. In the journey of litigation there are various stages. One of them is execution.
18. In Mahender Nath Gupta v. M/s. Moti Ram Rattan Chand and Anr (AIR 1975 Del 155) the Delhi High Court endorsed the view taken in Balmukand v. Veer Chand (AIR 154 ALL 643: 1954 All LJ 255) that where in a suit for specific performance of the contract for sale relief for possession is not claimed and consequently the decree passed in the suit contains no relief for delivery of possession. the court executing the decree is competent to deliver possession, an order directing delivery of possession being merely incidental to the execution of the deed of sale. The court however, observed that on March 1, 1964 Specific Relief Act of 1963 came into force and this Act altered the law by enacting section 22. It made it necessary for the plaintiff to ask specifically the relief of possession in suits for specific performance. The Court, however, held that section 22 of the Specific Relief Act of 1963 had no application to that case as the decree was passed when the old Act was in force.
19. The same High Court, however. in M/s. Ex-Servicemen Enterprises (P) Ltd. v. Sumey Singh considered the effect of section 22 (2) with its proviso. In that case the decree did not give the plaintiff the relief of possession. The question arose. Was the Court powerless to put him in possession of the property though he had a decree for specific performance in his favour ? The Delhi High Court observed:
"Section 22 enacts a rule of pleading. The legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance even though strictly speaking the right to possession accrues only when specific performance is decreed. The legislature has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time the defendant should execute the deed and put the plaintiff in possession.
In my opinion the proviso gives ample power to a court to allow the amendment of the plaint even at this stage. The proviso says that the amendment of the plaint can be allowed "at any stage of the proceedings" on such terms as may be just for including a claim for possession where the plaintiff has not claimed such relief in his original plaint.
* * * The term "proceeding" is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which Judicial business is conducted.
The word "proceeding" in Section 22 in my opinion includes execution proceedings also...
The High Court had relied upon Rameshwar Nath v. UP Union Bank (AIR 1956 all 586: 1956 All LJ 470) for its decision in this case. We are in complete agreement with the view taken by the Delhi High Court on this case."
8. In the judgment reported in 1974 (1) MLJ 166 in the case of S.S.Rajabathar V. N.A.Sayeed, it is held as follows:-
"A direction to deliver possession of the property is incidental to a decree for specific performance of an agreement to sell immovable property, and, therefore, the executing Court has jurisdiction to delivery of possession, although the decree in the suit for specific performance does not provide for delivery of possession. It cannot be said that in such a case the executing Court cannot go behind the decree and order delivery of possession.
The executing Court has jurisdiction to grant the relief of possession as incidental to the execution of the decree for specific performance of a contract of sale."
9. In the judgment reported in 2007 (3) CTC 529 supra, it is held that when the relief sought for by the plaintiff, namely, specific performance of agreement of sale, the sale deed shall be in accordance with the agreement which in turn means possession shall follow. The learned single Judge of this Court also distinguished the judgment reported in AIR 2001 Supreme Court 3712 supra and held that the judgment is totally on different footing altogether. In the said judgment of the Hon'ble Supreme Court, the Hon'ble Supreme Court had to consider the question whether the suit for specific performance was a suit for land or not and while holding that it was not a suit for land, some observations were made regarding Section 22(2) of the Specific Relief Act, 1963, and therefore, that cannot be relied upon by the judgment debtor.
10. I had an occasion to deal with such a situation in the judgment reported in 2012-1-LW.463 supra and relied upon the judgment of the Supreme Court reported in AIR 1982 Supreme Court 818, and 2007 (3) CTC 529 supra and I have held that even in the absence of prayer for possession, Court has got power to grant possession in a suit for specific performance. I also considered the judgment of the Hon'ble Supreme Court reported in AIR 2001 Supreme Court 3712 supra and held that possession can be granted in a suit for specific performance even though that relief was not sought for in the suit without amending the relief.
11. In this case, it is stated in the agreement of sale that the vendor, namely, the judgment debtor shall put the purchaser/decree holder in vacant possession of schedule mentioned property at the time of registration of the sale deed. Therefore, as rightly held by the learned Judge in the judgment reported in 2007 (3) CTC 529, in a suit for specific performance for agreement of sale, decreeing Court has got power to enforce the terms of agreement and as per the terms of agreement, the vendor, namely, the judgment debtor is bound to hande over possession to the decree holder and therefore, even in the absence of any prayer for possession and even without amending the relief for possession, the Court has got power to grant possession. Hence, I do not find any infirmity in the order of the learned Master.
12. In the result, the present Application is dismissed and the order of the Master is confirmed.
Index: yes 28.02.2014 Internet : yes asvm R.S.RAMANATHAN, J (asvm) A.No.5971 of 2013 in C.S.No.860 of 2008 28.02.2014