Ishwarbhai Girdhardas Pabari vs Chandhalben Dhirajlal Variya & 2 on 15 September, 2014

[Cites 7, Cited by 2]

Gujarat High Court

Ishwarbhai Girdhardas Pabari vs Chandhalben Dhirajlal Variya & 2 on 15 September, 2014

Bench: Abhilasha Kumari

         C/SCA/13509/2013                                   JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              SPECIAL CIVIL APPLICATION NO. 13509 of 2013



FOR APPROVAL AND SIGNATURE:


HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
===========================================================
1   Whether Reporters of Local Papers may be allowed to   Yes
    see the judgment ?

2    To be referred to the Reporter or not ?                           Yes

3    Whether their Lordships wish to see the fair copy of              No
     the judgment ?

4    Whether this case involves a substantial question of              No
     law as to the interpretation of the Constitution of
     India, 1950 or any order made thereunder ?

5    Whether it is to be circulated to the civil judge ?               No

================================================================
           ISHWARBHAI GIRDHARDAS PABARI....Petitioner(s)
                            Versus
         CHANDHALBEN DHIRAJLAL VARIYA & 2....Respondent(s)
================================================================
Appearance:
MR JAYESH A DAVE, ADVOCATE for the Petitioner(s) No. 1
MR MEHUL S SHAH, ADVOCATE for the Respondent(s) No. 1 - 3
================================================================

          CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
                 KUMARI

                              Date : 15/09/2014


                              ORAL JUDGMENT

1. Rule. Mr.Mehul S.Shah, learned advocate, waives Page 1 of 18 1 of 36 C/SCA/13509/2013 JUDGMENT service of notice of Rule for the respondents. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petition is being heard and decided, finally.

2. The challenge in this petition preferred under Articles 226 and 227 of the Constitution of India, is to the order dated 01.07.2013, passed by the learned Principal Senior Civil Judge, Jamnagar ("the Trial Court"), below the application at Ex.132, in Regular Civil Suit No.361 of 2006, whereby, the said application for amendment of the plaint, has been rejected.

3. The brief factual background of the case is as follows:

The petitioner is the plaintiff in the above mentioned suit instituted by him for the specific performance of an Agreement to Sell entered into by him with the respondents, in respect of Flat No.503, situated at Survey No.1 G4, Plant4, Plot No.10, purchased by him. The amount of consideration at Rs.1,10,000/ (Rupees Page 2 of 18 2 of 36 C/SCA/13509/2013 JUDGMENT One Lakh and Ten Thousand Only), was given by the petitioner to the respondents on 20.04.1993.

The Agreement to Sell in respect of the above premises was registered before the Joint Registrar, Jamnagar, on 20.04.1993. According to the petitioner, an amount of Rs.50,000/ (Rupees Fifty Thousand Only), was paid by him to the respondents in cash and Rs.50,000/ (Rupees Fifty Thousand Only), were paid by cheque. In all, the petitioner has paid Rs.1,00,000/ (Rupees One Lakh Only), to the respondents. The respondents handed over the possession of the said premises by way of a Agreement for Possession on 20.04.1993, as the petitioner paid the balance amount of Rs.10,000/ (Rupees Ten Thousand Only), as well. The timelimit for the execution of the Sale Deed was fixed as four months. However, in spite of the fact that the petitioner had paid the full consideration, the respondents refused to execute the Sale Deed. The petitioner was constrained to institute the abovementioned suit for specific performance, along with an application at Ex.5, for the grant Page 3 of 18 3 of 36 C/SCA/13509/2013 JUDGMENT of a temporary injunction. The application at Ex.5 was rejected by the Trial Court by order dated 13.03.1995. As no injunction was granted by the Trial Court in favour of the petitioner, the respondents took back the possession of the premises. The petitioner, therefore, preferred the application at Ex.132 under Order 6 Rule 17 of the Code of Civil Procedure, 1908 ("the CPC"), seeking to amend the plaint for adding a claim for possession of the premises. This application has been rejected by the Trial Court, leading to the filing of the present petition.

4. Mr.Jayesh A.Dave, learned advocate for the petitioner, has submitted that while passing the impugned order, the Trial Court failed to keep in mind the fact that the suit has been filed for specific performance and as per Section 22 of the Specific Relief Act, 1963, ("the Specific Relief Act"), the plaintiff is entitled to amend the plaint by inserting a relief for possession, at any stage of the proceedings.





                          Page 4 of 18



                                                           4 of 36
      C/SCA/13509/2013                             JUDGMENT

5. It is further submitted that the Trial Court has not appreciated the documents filed by the petitioner along with the suit, more particularly the Agreement for Possession, vide which possession of the premises was handed over to the petitioner on 20.04.1993. As possession was handed over to him, the petitioner did not claim possession in the suit. However, after the rejection of the application for temporary injunction, the respondents, taking advantage of this aspect, took back the possession of the premises, necessitating the filing of the application under Order 6 Rule 17 of the CPC for amendment in the plaint, by claiming the relief of possession.

6. It is contended that the provisions of Section 22 of the Specific Relief Act would prevail over Order 6 Rule 17, as the former is a special enactment, applicable to suits for specific performance.

7. It is further urged that the Trial Court has wrongly rejected the application on the ground Page 5 of 18 5 of 36 C/SCA/13509/2013 JUDGMENT that the petitioner has not produced evidence to show that on the day when the suit was instituted, the possession of the premises was with the petitioner. The Trial Court ought to have considered that the petitioner has produced the Agreement for Possession dated 20.04.1993, along with the list of documents which has been given Mark 4/2.

8. That, the Trial Court has, on the above grounds, committed a gross error of law and jurisdiction, resulting in a multiplicity of litigation. It is submitted that the impugned order deserves to be quashed and set aside and the petition allowed.

9. In support of the above submissions, the learned advocate for the petitioner has placed reliance upon a judgment of this Court in Kanaiyalal Chandulal Ganeshwala v. Zubedabibi D/o. Gulam Ahmad Deceased Through Legal Heirs & Ors. 2009(2) GLR 1067.

10. Mr.Mehul S.Shah, learned advocate for the respondents, has defended the order of the Trial Court and has submitted that the petitioner has Page 6 of 18 6 of 36 C/SCA/13509/2013 JUDGMENT been indolent in moving the application for amendment. The application at Ex.5 was rejected by the Trial Court on 13.03.1995. However, the application for amendment has been moved only on 24.01.2013. It is the case of the petitioner that the respondents took over the possession of the suit premises after the Trial Court rejected the application for injunction. The petitioner did not seek to amend the plaint from the year 1995 to 2013, though he was well aware that possession had been taken back as per his own case. The Trial Court has, therefore, rightly rejected the application.

11. It is further submitted that if the amendment is allowed, it would change the nature of the suit. However, if this Court, on the basis of the provisions of Section 22 of the Specific Relief Act and the judgment in Kanaiyalal Chandulal Ganeshwala v. Zubedabibi D/o. Gulam Ahmad Deceased Through Legal Heirs & Ors. (supra), is inclined to allow the petition, then costs may be imposed upon the petitioner and the respondents may be permitted to defend the claim Page 7 of 18 7 of 36 C/SCA/13509/2013 JUDGMENT for possession that may be made by way of the amendment.

12. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record.

13. It is an undisputed fact that while instituting the suit for specific performance of the Agreement to Sell, the petitioner did not claim the relief of possession of the premises in question. According to the learned advocate for the petitioner, the reason for this was that the petitioner had already been put into possession of the said premises on 20.04.1993, by way of an Agreement for Possession. Therefore, at that point of time, there was no requirement of making a prayer for possession. The respondents, taking advantage of the rejection of the application of the petitioner for grant of interim injunction took back the possession of the premises. It is in this factual background that the petitioner filed the application for Page 8 of 18 8 of 36 C/SCA/13509/2013 JUDGMENT amendment of the plaint by seeking to add a prayer for possession.

14. In the above background, it would be fruitful to advert to the provisions of Section 22 of the Specific Relief Act, which are relevant. They are reproduced hereinbelow:

"22. Power to grant relief for possession, partition, refund of earnest money, etc. (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for

(a) possession, or partition and separate possession, of the property, in addition to such performance; or

(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused.

(2) No relief under clause (a) or clause (b) of subsection (1) shall be Page 9 of 18 9 of 36 C/SCA/13509/2013 JUDGMENT granted by the court unless it has been specifically claimed:

Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

(3) The power of the court to grant relief under clause (b) of subsection (1) shall be without prejudice to its powers to award compensation under section 21."

15. The proviso to subsection (2) of Section 22 empowers the Court to permit the plaintiff to amend the plaint at any stage of the proceedings in case the plaintiff has not claimed the relief as specified in subsection (1)(a)(b), including that for possession.

16. In Kanaiyalal Chandulal Ganeshwala v. Zubedabibi D/o. Gulam Ahmad Deceased Through Legal Heirs & Ors. (supra), this Court had occasion to deal with an identical question and, after considering a judgment of the Supreme Court in Babu Lal v. M/s.Hazari Lal Kishori Lal Page 10 of 18 10 of 36 C/SCA/13509/2013 JUDGMENT & Ors. AIR 1982 SC 818, this Court observed as below:

"8. Section 22 came to be considered by the Hon'ble Supreme Court in the case of Babu Lal v. M/s.Hazari Lal Kishori Lal & Ors. (Supra). The relevant important observations of the Hon'ble Supreme Court in the aforesaid decision are as under:

"11. 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 suit for 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.

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 relies, he can claim, notwithstanding anything contained in the Code of Civil Procedure, 1908, to the contrary. SubSection (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. SubSection (2) of the Section recognised in clear terms the wellestablished 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 Page 11 of 18 11 of 36 C/SCA/13509/2013 JUDGMENT proviso to this SubSection (2), however, says that where the plaintiff has not specifically claimed these reliefs in his plaint, in the initial stages 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 the suits and that the plaintiff may get appropriate relief without being hampered by procedural complications.

13. The expression in SubSection (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 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 reliefs for partition and possession, the two reliefs, could not be combined in one suit. Similarly, 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 to obtain possession as against the party in actual possession of the property. As against him, a decree for possession must be specifically claimed for such a person is not bound by the contract sought to be enforced. In a case where exclusive possession is with contracting party, a decree for specific performance of the contract of sale simplicitor, without specifically providing for delivery of possession, may give complete relief to the decreeholder. In order to satisfy the decree against him completely he is bound not only to execute the saledeed but also to put the property in possession of the decreeholder. This is in consonance with the provisions of Section 55 (1) of the T.P. Act, which provides that the seller is bound to give, on being so Page 12 of 18 12 of 36 C/SCA/13509/2013 JUDGMENT required, the buyer or such person as he directs, such possession of the property as its nature admits.

... ... ...

20. It is thus clear that the Legislature has given ample power to the Court to allow amendment of the plaint at any stage, including the execution proceedings. In the instant case the High Court granted the relief of possession and the objection raised on behalf of the petitioner is that this was not possible at the execution stage and in any case the Court should have allowed first an amendment in the plaint and then an opportunity should have been afforded to the petitioner to file an objection.

21. If once we accept the legal position that neither a contract for sale nor a decree passed on that basis for specific performance of the contract gives any right or title to the decreeholder and the right and the title passes to him only on the execution of the deed of sale either by the judgementdebtor himself or by the Court itself in case he fails to execute th sale deed, it is idle to contend that a valuable right had accrued to the petitioner merely because a decree has been passed for the specific performance of the contract. The limitation would start against the decreeholders only after they had obtained a sale in respect of the disputed property. It is, therefore, difficult to accept that a valuable right had accrued to the judgementdebtor by lapse of time. Section 22 has been enacted only for the purpose of avoiding multiplicity of proceedings which the law Courts always abhor."

9. Now in light of the aforesaid observation of the Hon'ble Supreme Court, if subsection (2) of Section 22 of the Act is considered, in a case where the petitioneroriginal plaintiff has not asked for possession, the Court shall, at any stage of the proceeding, allow the petitioneroriginal Page 13 of 18 13 of 36 C/SCA/13509/2013 JUDGMENT plaintiff to amend the plaint on such terms as may be claimed for possession and, therefore, once amendment is sought in the suit for specific performance of agreement to sell asking for possession, the Court has no other alternate but to allow the petitioneroriginal plaintiff to amend the plaint, on such terms as may be just for including a claim for possession and the Court has no other alternate but to permit the petitioneroriginal plaintiff to amend the plaint asking for possession. It cannot be disputed that Specific Relief Act is a special Act and Section 22 is enacted for specific purpose to avoid multiplicity of proceedings (as observed by the Hon'ble Supreme Court in the aforesaid decision), and, therefore, Section 22 of the Act would override the procedural law, more particularly, Order 6 Rule 17 of the Code of Civil Procedure. Under the circumstances, the bar/restriction as provided under Order 6 Rule 17 of the Code of Civil Procedure would not be attracted in a case where amendment in the plaint is sought in the suit for specific performance of agreement to sell claiming relief of possession."

17. Considering the principles of law enunciated by the Supreme Court and this Court, as quoted Page 14 of 18 14 of 36 C/SCA/13509/2013 JUDGMENT hereinabove, it is clear that as per proviso to subsection (2) of Section 22 of the Specific Relief Act, the Court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be claimed for possession. The language of the proviso is mandatory. Moreover, Section 22 itself begins with a nonobstante clause. The Specific Relief Act is a special enactment and Section 22 thereof is enacted for a specific purpose which appears to be to avoid a multiplicity of proceedings. A specific provision in a special enactment would, therefore, override the procedural law, more particularly, Order 6 Rule 17 of the CPC. Under the circumstances, the restrictions upon the amendment of pleadings, as placed by the proviso to Order 6 Rule 17 of the CPC would not be attracted in a case where the amendment of the plaint is sought in a suit for specific performance of an Agreement to Sell. The provisions of Section 22 of the Specific Performance Act entitle the plaintiff to claim the relief of possession in a suit for specific Page 15 of 18 15 of 36 C/SCA/13509/2013 JUDGMENT performance of an Agreement to Sell at any stage of the proceedings. The case of the petitioner in the present petition is squarely covered by the provisions of Section 22 of the Specific Relief Act, as also the judgment of the Supreme Court in Babu Lal v. M/s.Hazari Lal Kishori Lal & Ors. (supra) and of this Court in Kanaiyalal Chandulal Ganeshwala v. Zubedabibi D/o. Gulam Ahmad Deceased Through Legal Heirs & Ors. (supra).

18. A perusal of the impugned order would go to show that the Trial Court has not considered the provisions of Section 22 of the Specific Relief Act though the suit instituted by the plaintiff is for specific performance. The Trial Court appears to have been swayed by the aspect that the petitioner did not produce any evidence to show that he was in possession of the suit premises at the time of the institution of the suit, though the petitioner did produce the Agreement for Possession, which has been given Mark 4/2. The second ground on which the Trial Court has passed the impugned order is that of Page 16 of 18 16 of 36 C/SCA/13509/2013 JUDGMENT delay. The provisions of Section 22 of the Specific Performance Act do not bar the plaintiff from seeking the relief of possession even if the suit is at an advanced stage as the words used are "at any stage of the proceeding". Therefore, the grounds stipulated by the Trial Court in the impugned order would not be applicable to the present case.

19. There is one aspect pointed out by the learned advocate for the respondents that would require consideration. It is submitted on behalf of the respondents that as per the case of the petitioner, the possession of the suit premises was taken away by the respondents after the rejection of the plaint at Ex.5 for temporary injunction on 13.03.1995. However, the petitioner filed the application for amendment only on 24.01.2013, which is after almost about 17 years and 10 months. It is submitted that the petitioner has been lax in pursuing his remedy, therefore, costs may be imposed upon him. There is considerable weight in the said submission.





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                                                          17 of 36
            C/SCA/13509/2013                              JUDGMENT

20. Having regard to the facts and circumstances of the case and the reasons stated hereinabove, the impugned order dated 01.07.2013, passed by the Trial Court below the application at Ex.132 in Regular Civil Suit No.361 of 2006, rejecting the application for amendment is quashed and set aside, on condition that the petitioner shall deposit a sum of Rs.5,000/ (Rupees Five Thousand Only), as costs with the Trial Court within a period of four weeks from today. The petitioner shall be permitted to amend the plaint only after the deposit of the amount of costs. The Trial Court shall hand over the amount of Rs.5,000/ (Rupees Five Thousand Only) to the respondents by way of an Account Payee Cheque. Rule is made absolute in the above terms.




                                            (SMT. ABHILASHA KUMARI, J.)
sunil




                                Page 18 of 18



                                                                    18 of 36
          C/SCA/13509/2013                                   JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 13509 of 2013 FOR APPROVAL AND SIGNATURE:

HONOURABLE SMT. JUSTICE ABHILASHA KUMARI =========================================================== 1 Whether Reporters of Local Papers may be allowed to Yes see the judgment ?

2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of No the judgment ?

4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

5 Whether it is to be circulated to the civil judge ? No ================================================================ ISHWARBHAI GIRDHARDAS PABARI....Petitioner(s) Versus CHANDHALBEN DHIRAJLAL VARIYA & 2....Respondent(s) ================================================================ Appearance:

MR JAYESH A DAVE, ADVOCATE for the Petitioner(s) No. 1 MR MEHUL S SHAH, ADVOCATE for the Respondent(s) No. 1 - 3 ================================================================ CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 15/09/2014 ORAL JUDGMENT

1. Rule. Mr.Mehul S.Shah, learned advocate, waives Page 1 of 18

19 of 36 C/SCA/13509/2013 JUDGMENT service of notice of Rule for the respondents. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petition is being heard and decided, finally.

3. The brief factual background of the case is as follows:

The petitioner is the plaintiff in the above mentioned suit instituted by him for the specific performance of an Agreement to Sell entered into by him with the respondents, in respect of Flat No.503, situated at Survey No.1 G4, Plant4, Plot No.10, purchased by him. The amount of consideration at Rs.1,10,000/ (Rupees Page 2 of 18 20 of 36 C/SCA/13509/2013 JUDGMENT One Lakh and Ten Thousand Only), was given by the petitioner to the respondents on 20.04.1993.

The Agreement to Sell in respect of the above premises was registered before the Joint Registrar, Jamnagar, on 20.04.1993. According to the petitioner, an amount of Rs.50,000/ (Rupees Fifty Thousand Only), was paid by him to the respondents in cash and Rs.50,000/ (Rupees Fifty Thousand Only), were paid by cheque. In all, the petitioner has paid Rs.1,00,000/ (Rupees One Lakh Only), to the respondents. The respondents handed over the possession of the said premises by way of a Agreement for Possession on 20.04.1993, as the petitioner paid the balance amount of Rs.10,000/ (Rupees Ten Thousand Only), as well. The timelimit for the execution of the Sale Deed was fixed as four months. However, in spite of the fact that the petitioner had paid the full consideration, the respondents refused to execute the Sale Deed. The petitioner was constrained to institute the abovementioned suit for specific performance, along with an application at Ex.5, for the grant Page 3 of 18 21 of 36 C/SCA/13509/2013 JUDGMENT of a temporary injunction. The application at Ex.5 was rejected by the Trial Court by order dated 13.03.1995. As no injunction was granted by the Trial Court in favour of the petitioner, the respondents took back the possession of the premises. The petitioner, therefore, preferred the application at Ex.132 under Order 6 Rule 17 of the Code of Civil Procedure, 1908 ("the CPC"), seeking to amend the plaint for adding a claim for possession of the premises. This application has been rejected by the Trial Court, leading to the filing of the present petition.





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                                                          22 of 36
      C/SCA/13509/2013                             JUDGMENT

6. It is contended that the provisions of Section 22 of the Specific Relief Act would prevail over Order 6 Rule 17, as the former is a special enactment, applicable to suits for specific performance.

7. It is further urged that the Trial Court has wrongly rejected the application on the ground Page 5 of 18 23 of 36 C/SCA/13509/2013 JUDGMENT that the petitioner has not produced evidence to show that on the day when the suit was instituted, the possession of the premises was with the petitioner. The Trial Court ought to have considered that the petitioner has produced the Agreement for Possession dated 20.04.1993, along with the list of documents which has been given Mark 4/2.

10. Mr.Mehul S.Shah, learned advocate for the respondents, has defended the order of the Trial Court and has submitted that the petitioner has Page 6 of 18 24 of 36 C/SCA/13509/2013 JUDGMENT been indolent in moving the application for amendment. The application at Ex.5 was rejected by the Trial Court on 13.03.1995. However, the application for amendment has been moved only on 24.01.2013. It is the case of the petitioner that the respondents took over the possession of the suit premises after the Trial Court rejected the application for injunction. The petitioner did not seek to amend the plaint from the year 1995 to 2013, though he was well aware that possession had been taken back as per his own case. The Trial Court has, therefore, rightly rejected the application.

11. It is further submitted that if the amendment is allowed, it would change the nature of the suit. However, if this Court, on the basis of the provisions of Section 22 of the Specific Relief Act and the judgment in Kanaiyalal Chandulal Ganeshwala v. Zubedabibi D/o. Gulam Ahmad Deceased Through Legal Heirs & Ors. (supra), is inclined to allow the petition, then costs may be imposed upon the petitioner and the respondents may be permitted to defend the claim Page 7 of 18 25 of 36 C/SCA/13509/2013 JUDGMENT for possession that may be made by way of the amendment.

12. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record.

13. It is an undisputed fact that while instituting the suit for specific performance of the Agreement to Sell, the petitioner did not claim the relief of possession of the premises in question. According to the learned advocate for the petitioner, the reason for this was that the petitioner had already been put into possession of the said premises on 20.04.1993, by way of an Agreement for Possession. Therefore, at that point of time, there was no requirement of making a prayer for possession. The respondents, taking advantage of the rejection of the application of the petitioner for grant of interim injunction took back the possession of the premises. It is in this factual background that the petitioner filed the application for Page 8 of 18 26 of 36 C/SCA/13509/2013 JUDGMENT amendment of the plaint by seeking to add a prayer for possession.

14. In the above background, it would be fruitful to advert to the provisions of Section 22 of the Specific Relief Act, which are relevant. They are reproduced hereinbelow:

"22. Power to grant relief for possession, partition, refund of earnest money, etc. (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for

(a) possession, or partition and separate possession, of the property, in addition to such performance; or

(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused.

(2) No relief under clause (a) or clause (b) of subsection (1) shall be Page 9 of 18 27 of 36 C/SCA/13509/2013 JUDGMENT granted by the court unless it has been specifically claimed:

Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

(3) The power of the court to grant relief under clause (b) of subsection (1) shall be without prejudice to its powers to award compensation under section 21."

16. In Kanaiyalal Chandulal Ganeshwala v. Zubedabibi D/o. Gulam Ahmad Deceased Through Legal Heirs & Ors. (supra), this Court had occasion to deal with an identical question and, after considering a judgment of the Supreme Court in Babu Lal v. M/s.Hazari Lal Kishori Lal Page 10 of 18 28 of 36 C/SCA/13509/2013 JUDGMENT & Ors. AIR 1982 SC 818, this Court observed as below:

"8. Section 22 came to be considered by the Hon'ble Supreme Court in the case of Babu Lal v. M/s.Hazari Lal Kishori Lal & Ors. (Supra). The relevant important observations of the Hon'ble Supreme Court in the aforesaid decision are as under:

"11. 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 suit for 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.

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 relies, he can claim, notwithstanding anything contained in the Code of Civil Procedure, 1908, to the contrary. SubSection (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. SubSection (2) of the Section recognised in clear terms the wellestablished 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 Page 11 of 18

29 of 36 C/SCA/13509/2013 JUDGMENT proviso to this SubSection (2), however, says that where the plaintiff has not specifically claimed these reliefs in his plaint, in the initial stages 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 the suits and that the plaintiff may get appropriate relief without being hampered by procedural complications.

13. The expression in SubSection (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 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 reliefs for partition and possession, the two reliefs, could not be combined in one suit. Similarly, 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 to obtain possession as against the party in actual possession of the property. As against him, a decree for possession must be specifically claimed for such a person is not bound by the contract sought to be enforced. In a case where exclusive possession is with contracting party, a decree for specific performance of the contract of sale simplicitor, without specifically providing for delivery of possession, may give complete relief to the decreeholder. In order to satisfy the decree against him completely he is bound not only to execute the saledeed but also to put the property in possession of the decreeholder. This is in consonance with the provisions of Section 55 (1) of the T.P. Act, which provides that the seller is bound to give, on being so Page 12 of 18 30 of 36 C/SCA/13509/2013 JUDGMENT required, the buyer or such person as he directs, such possession of the property as its nature admits.

... ... ...

9. Now in light of the aforesaid observation of the Hon'ble Supreme Court, if subsection (2) of Section 22 of the Act is considered, in a case where the petitioneroriginal plaintiff has not asked for possession, the Court shall, at any stage of the proceeding, allow the petitioneroriginal Page 13 of 18 31 of 36 C/SCA/13509/2013 JUDGMENT plaintiff to amend the plaint on such terms as may be claimed for possession and, therefore, once amendment is sought in the suit for specific performance of agreement to sell asking for possession, the Court has no other alternate but to allow the petitioneroriginal plaintiff to amend the plaint, on such terms as may be just for including a claim for possession and the Court has no other alternate but to permit the petitioneroriginal plaintiff to amend the plaint asking for possession. It cannot be disputed that Specific Relief Act is a special Act and Section 22 is enacted for specific purpose to avoid multiplicity of proceedings (as observed by the Hon'ble Supreme Court in the aforesaid decision), and, therefore, Section 22 of the Act would override the procedural law, more particularly, Order 6 Rule 17 of the Code of Civil Procedure. Under the circumstances, the bar/restriction as provided under Order 6 Rule 17 of the Code of Civil Procedure would not be attracted in a case where amendment in the plaint is sought in the suit for specific performance of agreement to sell claiming relief of possession."

17. Considering the principles of law enunciated by the Supreme Court and this Court, as quoted Page 14 of 18 32 of 36 C/SCA/13509/2013 JUDGMENT hereinabove, it is clear that as per proviso to subsection (2) of Section 22 of the Specific Relief Act, the Court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be claimed for possession. The language of the proviso is mandatory. Moreover, Section 22 itself begins with a nonobstante clause. The Specific Relief Act is a special enactment and Section 22 thereof is enacted for a specific purpose which appears to be to avoid a multiplicity of proceedings. A specific provision in a special enactment would, therefore, override the procedural law, more particularly, Order 6 Rule 17 of the CPC. Under the circumstances, the restrictions upon the amendment of pleadings, as placed by the proviso to Order 6 Rule 17 of the CPC would not be attracted in a case where the amendment of the plaint is sought in a suit for specific performance of an Agreement to Sell. The provisions of Section 22 of the Specific Performance Act entitle the plaintiff to claim the relief of possession in a suit for specific Page 15 of 18 33 of 36 C/SCA/13509/2013 JUDGMENT performance of an Agreement to Sell at any stage of the proceedings. The case of the petitioner in the present petition is squarely covered by the provisions of Section 22 of the Specific Relief Act, as also the judgment of the Supreme Court in Babu Lal v. M/s.Hazari Lal Kishori Lal & Ors. (supra) and of this Court in Kanaiyalal Chandulal Ganeshwala v. Zubedabibi D/o. Gulam Ahmad Deceased Through Legal Heirs & Ors. (supra).

18. A perusal of the impugned order would go to show that the Trial Court has not considered the provisions of Section 22 of the Specific Relief Act though the suit instituted by the plaintiff is for specific performance. The Trial Court appears to have been swayed by the aspect that the petitioner did not produce any evidence to show that he was in possession of the suit premises at the time of the institution of the suit, though the petitioner did produce the Agreement for Possession, which has been given Mark 4/2. The second ground on which the Trial Court has passed the impugned order is that of Page 16 of 18 34 of 36 C/SCA/13509/2013 JUDGMENT delay. The provisions of Section 22 of the Specific Performance Act do not bar the plaintiff from seeking the relief of possession even if the suit is at an advanced stage as the words used are "at any stage of the proceeding". Therefore, the grounds stipulated by the Trial Court in the impugned order would not be applicable to the present case.





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            C/SCA/13509/2013                              JUDGMENT

(SMT. ABHILASHA KUMARI, J.) sunil Page 18 of 18 36 of 36

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