Gauhati High Court
Md. Jalamuddin vs Jaheda Bewa on 22 July, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
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GAHC010010642014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/184/2014
MD. JALAMUDDIN
S/O LT. JAMATULLAH SARKAR R/O VILL- GHANSIMULI MOUZA- PACHIM
SIALMARI P.S. DALGAON, DIST. DARRANG, ASSAM.
VERSUS
JAHEDA BEWA
W/O LT. ABDUL JABBAR R/O VILL- KHANAPARA MOUZA- PUB SIALMARI,
P.S. DALGAON, DIST. DARRANG, ASSAM.
Advocate for the Petitioner : MS.S Y AHMED
Advocate for the Respondent : MS. R CHOUDHURY
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT & ORDER (ORAL)
Date : 22-07-2022 Heard Mr. M.K. Hussain, the learned counsel for the Petitioner and Mrs. R. Chouhdury, the learned counsel appearing on behalf of the Respondents.
2. This is an application under Section 115 of the Code of Civil Procedure, 1908 (in short the Code) read with Article 227 of the Constitution of India challenging the Page No.# 2/10 order dated 9/4/2014 passed in Title Execution Case No. 6/2007.
3. The facts of the instant case are that one Musstt. Jahida Bewa had instituted a suit for specific performance of an agreement dated 29/12/1999 in respect to a plot of land described in the Schedule to the plaint in Title Suit No.21/2001. In the said suit, the Plaintiff prayed for a decree for direction to the Defendant to execute and register a Sale Deed in favour of the Plaintiff in respect to the suit land on accepting the contracted purchase money less the amount already paid; a decree for direction to the Defendant to execute and register the Sale Deed in question within the specified time, failing which the said deed be executed and registered according to the provisions of Order XX1 Rule 34 of the Code; and in the alternative prayed for recovery of the earnest money with interest @ 12 % per annum from 29/11/1999 till realization. Apart from that, the Plaintiff prayed for a decree for permanent injunction. Admittedly there was no prayer for delivery of possession in the said suit. The Defendant filed his written statement denying the case of the Plaintiff. The Trial Court vide the judgment and decree dated 23/12/2005 passed a preliminary decree on contest with a direction to the Defendant to execute and register a Sale Deed in favour of the Plaintiff in respect to the suit land accepting the contractual purchase money less the amount already paid. The Trial Court further directed the Defendant to execute and register the Sale Deed within a period of three months i.e on or before 31/3/2006 after receiving the balance amount as agreed, failing which the said deed would be executed and registered according to the provisions of Order XXI Rule 34 of the Code.
Page No.# 3/10 It was also made clear that if the Defendant failed to execute and register the Sale Deed within the aforesaid period, the Plaintiff will be entitled to a final decree. It was further decreed that the Plaintiff is entitled for permanent injunction restraining the Defendant from selling or otherwise disposing of the suit land to others. Subsequent thereto, as the Defendant did not execute the Deed of Sale, the Trial Court passed the final decree on 22/3/2017.
4. The said decree has been put into execution in Title Execution Case No. 6/2007. It appears that the records of the said Title Ex. Case No. 6/2007 was called for by this Court vide an order dated 10/6/2022. A perusal of the said records show that the petition was filed by the decree-holder on 15/12/2010 under Section 28(3) (a)
(b) and 4 of the Specific Relief Act, 1963 read with Order XXI Rule 5 of the Code praying inter alia for execution and registration of a Sale Deed in respect to the suit land in favour of the decree-holder as well as to deliver vacant possession of the suit land to the decree-holder after execution and registration of the proper deed of conveyance by the Court. The records reveal that the said petition was registered and numbered as Petition No. 2306/2010 and thereafter on various dates, the Judgment Debtor sought for time for filing objection as well as for hearing. It further appears that on 16/11/2011, the Court below have heard the parties on the said Petition No. 2306/2010 and fixed 29/11/2011 for order. However on 29/11/2011 another petition was filed by the Judgment Debtor under Section 47 read with Section 151 of the Code and thereupon there was no order passed in the said Petition No.2306/2010. However, Page No.# 4/10 on 14/2/2012, the Executing Court had passed an order to the effect that the Executing Court had perused the entire case records as well as the judgment and decree passed in Title Suit No. 21/2001 and considering all, the decree-holder was directed to submit the draft Sale Deed as per the decree. It further appears from the records that the decree-holder submitted the draft Sale Deed and in pursuance thereto the registered Sale Deed No.99 dated 12/6/2012 was executed and registered.
5. On 9/7/2012, the decree holder filed another Petition No.1939/20212 under Section 28 (3) (a) (B) and 4 of the Specific Relief Act, 1963 read with Section 151 of the CPC for delivery of vacant possession. The Judgment Debtor thereupon filed their written objection to the said application and the Executing Court vide the order dated 9/4/2014 allowed the said application which was filed on 9/7/2012 and being aggrieved by the said order dated 9/4/2014 passed therein the instant application has been filed under Section 115 of the Code read with Article 227 of the Constitution of India.
6. Mr. M.K. Hussain, the learned counsel appearing on behalf of the Petitioner submits that the Court below while passing the impugned order failed to take into consideration that the said Court had already rejected a similar application whereby there was a prayer for handing over of vacant possession and as such by virtue of the provisions of Section 11 of the Code, the plea of res judicata duly applied for which the Court could not have passed the order dated 9/4/2014, thereby directing delivery of possession over the suit land.
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7. On the other hand, Mrs. R. Choudhury, the learned counsel appearing on behalf of the Respondent submitted that it was on account of inadvertence on the part of the Court below not to pass the order for delivery of vacant possession in respect to the Petition No. 2306/2010 which necessitated the decree-holder to file again another Petition which was registered and numbered as Petition No. 1939/2012. She submitted, the question of rejection of the second prayer made in the Petition No. 2306/2012 did not arise at all for which the question of res judicata did not apply. She further submitted that the law is well settled that in a suit where the exclusive possession is with the contracting party, a mere decree for specific performance of the sale simplicitor without specifically providing for delivery of possession would be the complete relief for the decree-holder. It is well established that the relief of possession is inherent in a decree for specific performance and need not be specifically claimed.
8. I have heard the learned counsel for the parties and perused the materials on record.
9. It is an admitted fact that the Judgment Debtor is in exclusive possession and the Judgment Debtor was a contracting party to the "Bainapatra" dated 29/12/1999. It appears from the records of Title Ex. Case No. 6/2007 that although the Petition No. 2306/2021 was filed by the decree holder, but no order was passed by the Executing Court in the said application nor the said application seems to have been disposed off as would be seen from a perusal of the entire order sheet. The second petition which has been filed and in respect to which the order impugned has been passed is nothing Page No.# 6/10 but a reminder to the Executing Court that no order was passed in Petition No. 2306/2010. Consequently there being no decision in Petition No. 2306/2010, the question of res judicata does not apply to the facts of the case.
10. Now coming to the question as regards entitlement of the decree-holder for recovery of vacant possession of the suit land which stood already conveyed vide the registered Deed of Sale bearing No.99 dated 12/6/2012, the law is well settled that the provision of Section 22 of the Specific Relief Act, 1963 was introduced in view of the various divergent judicial opinions by various Courts as regards whether a specific prayer was necessary in a suit for specific performance for delivery of possession of the suit land. The very purpose of introducing Section 22 to the Act of 1963 was a Rule of pleading with a purpose to avoid multiplicity of the proceedings. It is well settled that a right of possession accrues only when a suit for specific performance is decreed. But now by virtue of Section 22 of the Act of 1963, the Court is empowered to provide in the decree itself that upon payment by the plaintiff of the consideration amount within the time given, the Defendant shall execute the deed and put the Plaintiff in possession. This position of law is well settled by a judgment of the Supreme Court rendered in the case of Babulal Vs Hajarilal Kishorilal and Ors. reported in (1982) 1 SCC 525 wherein the Supreme Court had examined the question as to whether the relief of possession can be effectively granted to the decree-holder, where the property agreed to be conveyed was jointly held by the Defendant with other persons. In doing so, the Supreme Court made it categorically Page No.# 7/10 clear in paragraph No. 13 that when in a suit, where the exclusive possession of the suit land was with the contracting party, a decree for specific performance of the contract of sale simplicitor without specifically providing for delivery of possession would give complete relief to the decree-holder. Paragraph No. 13 of the said judgment is quoted herein below.
"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, a case may be visualised 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 to 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 provisions 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."
11. Subsequent thereto, in a recent judgment of the Supreme Court in the case of Manickam and Another Vs. Vasantha reported in MANU/SC/0789/2022 the Supreme Court observed that the provisions of Section 22 (2) of the Act of 1963 is only directory and thus the decree-holder cannot be non-suited for the reasons that Page No.# 8/10 such relief was not granted in the decree for specific relief. The Supreme Court further relied upon the judgment in Babulal(supra) and opined the circumstances where the relief of possession may be necessary. It was further observed that in a suit for specific performance the right to possession is inherent in such suit. Therefore, the decree-holders are in fact entitled to possession in pursuance to the Sale Deed executed in their favour. Paragraph Nos. 26 to 31 of said judgment being relevant are quoted herein below :-
"26. The matter can be examined from another angle as well. Section 22(2) of the Act, though is worded in negative language, "no relief Under Clause (a) or Clause (b) of Sub-section (1) shall be granted by the court unless it has been specifically claimed", but the proviso takes out the mandatory nature from the substantive provision of Subsection (2) when the Plaintiff is allowed to amend the plaint on such terms as may be just for including the plaint for such relief "at any stage of the proceeding". "At any stage of the proceeding" would include the proceeding in suit or in appeal and also in execution. The proviso to Sub-section (2) of Section 22 of the Act contemplates that the Court shall, at any stage of the proceedings, allow the Plaintiff to amend the plaint on such terms as may be just for including a claim for such relief. The said proviso makes the provision directory as no penal consequences follow Under Sub-section (2) of Section 22. Therefore, Sub-section (2) of Section 22 is a Rule of prudence to ask for possession "in an appropriate case". The appropriate case would not include a suit for specific performance simpliciter but may include a suit for partition or a suit when the decree is to be executed against a transferee. Sub-section (2) cannot be said to be a mandatory provision as the power to claim relief at any stage of the proceeding makes Sub-section (2) directory. Sub-section (2) is a matter of procedure to avoid multiplicity of proceedings. The procedural laws are handmaid of justice and cannot defeat the substantive rights. Reference may be made to M/s. Ganesh Trading Co. v. Moji Ram MANU/SC/0018/1978 : (1978) 2 SCC 91 wherein it was held as under:
2. Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.
27. A three-Judge Bench of this Court in a judgment reported as Salem Advocate Bar Association, T.N. v. Union of India MANU/SC/0450/2005 : (2005) 6 SCC 344 while interpreting the word "shall" in Order VIII Rule 1 of the Code of Civil Procedure, 1908 held as under:
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20. The use of the word "shall" in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word "shall" is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The Rule in question has to advance the cause of justice and not to defeat it. The Rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the Rule or procedure which promotes justice and prevents miscarriage has to be preferred. The Rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.
28. A three-Judge Bench of this Court in a judgment reported as C. Bright v. District Collector and Ors. MANU/SC/0845/2020 : (2021) 2 SCC 392 was examining Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and held as under: 8. A well-settled Rule of interpretation of the statutes is that the use of the word "shall" in a statute, does not necessarily mean that in every case it is mandatory that unless the words of the statute are literally followed, the proceeding or the outcome of the proceeding, would be invalid. It is not always correct to say that if the word "may" has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid [State of U.P. v. Manbodhan Lal Srivastava MANU/SC/0123/1957 : AIR 1957 SC 912] and that when a statute uses the word "shall", prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute [State of U.P. v.
Babu Ram Upadhya MANU/SC/0312/1960 : AIR 1961 SC 751]. The principle of literal construction of the statute alone in all circumstances without examining the context and scheme of the statute may not serve the purpose of the statute [RBI v. Peerless General Finance & Investment Co. Ltd. MANU/SC/0073/1987 : (1987) 1 SCC 424].
29. To examine whether a provision is directory or mandatory, one of the tests is that the court is required to ascertain the real intention of the legislature by carefully attending to the whole scheme of the statute. Keeping in view the scheme of the statute, we find that Section 22(2) of the Act is only directory and thus, the decree- holder cannot be nonsuited for the reason that such relief was not granted in the decree for specific relief.
30. The Defendant in terms of the agreement is bound to handover possession of the land agreed to be sold. The expression "at any stage of proceeding" is wide enough to allow the Plaintiffs to seek relief of possession even at the appellate stage or in execution even if such prayer was required to be claimed. This Court in Babu Lal has explained the circumstances where relief of possession may be necessary such as in a suit for partition or in a case of separate possession where the property conveyed is a joint property. In the suit for specific performance, the possession is inherent in such suit, therefore, we find that the decree-holders are in fact entitled to possession in pursuance of the sale deed executed in their favor.
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31. The judgment debtor in the written statement has admitted that the property is a vacant land and that she has sold other portion in favor of one Lakshmipathy. The stand of the judgment debtor now that the Respondent is in possession of 750 sq. feet would not defeat the right of possession of 2400 sq. feet of an area which she has agreed to sell to the Plaintiffs in respect of which decree was passed. All sales affected, and the construction, if any, raised are subject to lis pendens and no legal or equitable rights arise in favour of the purchasers during the pendency of the proceedings. Therefore, the decree-holders are entitled to actual physical possession of 2400 sq. feet of land which was agreed to be sold to the Appellants ."
12. In the instant case, as already stated hereinabove, the Judgment Debtor is in exclusive possession of the suit property and as such a decree for specific performance of the contract of sale simplicitor which was passed in the instant case would be sufficient for the purpose of handing over vacant possession of the suit land to the decree holders
13. Considering the above and also on perusal of the impugned order, this Court does not find any infirmity in the impugned order. Consequently, the impugned order stands confirmed and the instant petition being devoid of any merit is dismissed.
14. The interim order so passed by this Court whereby further proceedings in Title Execution Case No. 6/2016 was stayed is vacated and the parties are directed to appear before the Executing Court on 22nd of August, 2022. Taking into consideration that the execution proceedings is pending since the last 15 years, the Executing Court shall expeditiously dispose off the said execution proceedings and preferably within a period of 3(three) months from today.
15. The Registry is directed to send back the records forthwith.
JUDGE Comparing Assistant