Madras High Court
Krishnamurthy Gounder ... Revision vs Venkatakrishnan on 11 January, 2012
Equivalent citations: AIR 2012 MADRAS 105, (2013) 1 ICC 406, (2012) 1 MAD LW 463, (2012) 112 ALLINDCAS 661 (MAD)
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 11.01.2012
Coram:
The Honourable Mr. Justice R.S.RAMANATHAN
C.R.P.(NPD) No. 3512 of 2007
and
M.P.Nos. 1 to 3 of 2009
Krishnamurthy Gounder ... Revision Petitioner/ Plaintiff
..vs..
1. Venkatakrishnan
2. Rathina Ammal
3. Saratha Ammal
4. Murugan
5. Vasantha
6. Mani
7. Manohara
8. Pachaiammal
9. MUrugan
10. Nala Chakravarthy
11. Kasiammal
12. Muniammal
13. Arunachalam
14. Pappathiammal
15. Subramani
16. Sankar
17. Vendamani
... Respondents/
Defendants
Civil Revision Petition filed under Section 115 of the Civil Procedure Code to set aside the order dated 3.7.2007 in E.A.No.118 of 2007 in E.P.No.20 of 2005 in O.S.No.304 of 1996 on the file of the Principal District Munsif cum Judicial Magistrate, Chengam.
For Petitioner ... Mr. G.Rajan
For Respondent No.1 ... Mr. C.Vediyappan
O R D E R
The revision petitioner is the plaintiff in O.S.No.304 of 1996 on the file of the Principal District Munsif cum Judicial Magistrate, Chengam.
2. The revision petitioner filed the suit for specific performance of an agreement of sale and also for recovery of possession. The lower Court passed a decree of specific performance by Judgement and Decree dated 29.4.2004. In the decree passed there is no mention about the relief of recovery of possession and the decree only says that the plaintiff is entitled for specific performance of contract. Thereafter, the revision petitioner filed Execution Petition for execution of the sale deed as the defendants failed to execute the sale deed, the sale deed was executed by the Court on 3.1.2007 and registered as Document No.45 of 2007 on 5.1.2007. Thereafter, the revision petitioner filed E.A.No.118 of 2007 for delivery of possession of property and that petition was dismissed and against the same this revision is filed.
3. It is submitted by the learned counsel for the revision petitioner that the Court below erred in dismissing the application for delivery of possession on the ground that the trial Court declined to grant a decree for delivery of possession and in the absence of such decree for delivery of possession, the application is not maintainable. According to the learned counsel for the revision petitioner that in the Judgement reported in AIR 1982 Supreme Court 818 (Babu Lal Vs. M/s. Hazari Lal Kishori Lal ) the Hon'ble Supreme Court considered the scope of Sections 21, 22 and 28 of the Specific Relief Act and held that even in the absence of any prayer for recovery of possession, the Court has got power to order delivery of possession though the sale deed was executed pursuant to the decree passed in the suit. He also relied upon the Judgement of this Court reported in 2007 (3) CTC 529 (S.Sampoornam Vs. P.V.Kuppuswamy) wherein this Court considered the same question and after relying upon the Judgement reported in AIR 1982 Supreme Court 818 (Babu Lal Vs. M/s. Hazari Lal Kishori Lal ) and other Judgements held that the recovery of possession can be ordered when the suit for specific performance is decreed. He therefore contended that the order of the Court below is liable to be set aside.
4. On the other hand, the learned counsel for the 1st respondent relied upon the Judgement reported in AIR 2001 Supreme Court 3712 (Adcon Electronics Pvt. Ltd., Vs. Daulat and another) and contended that in the absence of any decree for possession the Court below has no power to order delivery of possession of the property and executing the Court cannot go beyond the decree. He further submitted that having specifically prayed for the relief of delivery of possession and the decree is silent about the relief of delivery of possession, it can be presumed that the Court has negatived the relief and therefore without amending the prayer for delivery of possession, the revision petitioner is not entitled to the relief of recovery of possession. He further contended that even as per Section 22 of the Specific Relief Act, the Court has no power to grant the relief of possession unless it has been specifically claimed and when the plaintiff has not claimed any such relief in the plaint, the Court should permit the plaintiff to amend the plaint and thereafter grant the relief of recovery of possession and without amending the prayer for recovery of possession, the plaintiff/ revision petitioner is not entitled to the relief prayed for. He further submitted that in the Judgement of this Court reported in 2007 (3) CTC 529 (S.Sampoornam Vs. P.V.Kuppuswamy) the Court was carried away by the findings of the Judgement in the lower Court wherein it was specifically stated that the suit was decreed as prayed for. In that suit the recovery of possession was prayed for and while drafting the decree that relief was not included and considering the same this Court has granted the relief of recovery of possession and therefore the above Judgement cannot be applied to the facts of this case. I am unable to accept the contention of the learned counsel for the 1st respondent.
5. Admittedly, in the suit filed by the revision petitioner he prayed for specific performance of an agreement of sale and also for delivery of possession. No doubt, the lower Court granted a decree for specific performance and the decree is silent about the recovery of possession. In these circumstances, the observation of the Hon'ble Supreme Court made in the Judgement reported in AIR 1982 Supreme Court 818 (Babu Lal Vs. M/s. Hazari Lal Kishori Lal ) is relevant and is as follows:
Section 22 of the Specific Relief Act which enacts a rule of pleading provides 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, notwithstanding anything contained in the Civil P.C., to the contrary. Sub-sec. (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.
The proviso to this sub-s. (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, 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.
The expression in an appropriate case in Section 22 (1) is very significant. 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-sec. (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. 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 T.P.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.
The word proceeding has not been defined in the Act. That term 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.
Since 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 decree-holder and the right and the title passes to him only on the execution of the deed of sale either by the judgment-debtor himself or by the Court itself in case he fails to execute the 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 decree-holders 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 judgement-debtor by lapse of time. Section 22 has been enacted only for the purpose of avoiding multiplicity of proceedings which the law Courts always abhor.
Further, Section 28 (3) clearly contemplates that if the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree, the Court may on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to Sub-cl. (b) of sub-sec. (3) of Section 28 contemplates the delivery of possession or partition and separate possession of the property on the execution of such conveyance or lease. Therefore, it is seen from the above Judgement the Hon'ble Supreme Court has considered the provisions of Sections 21,22 and 28 of the Specific Relief Act and held that after obtaining the sale deed the right accrues to the purchaser to ask for possession and the Hon'ble Supreme Court has considered the provisions of Section 55 (1) of the T.P.Act in support of its conclusion.
6. In the Judgement of this Court reported in 2007 (3) CTC 529 (S.Sampoornam Vs. P.V.Kuppuswamy) also the same principles are reiterated and it was held that even in the absence of any prayer for possession once a suit for specific performance is decreed the Court has got every power to order delivery of possession. Further, according to me, the Court has got power to grant the relief of possession even in the absence of any such prayer as per the proviso to Section 22(2) of the Specific Relief Act the Court shall at any stage of the proceedings allow the plaintiff to amend the plaint to include the relief. In my opinion, a discretion is vested on the Court to allow the amendment and even in the absence of any prayer and even in the absence of any application for amendment, the Court can grant the relief of recovery of possession once the suit is decreed for specific performance. These aspects were not properly appreciated by the Court below and the Court below approached the application in a pedantic manner and dismissed the application without appreciating the Judgements of the Hon'ble Supreme Court and of our High Court.
7. Hence, the order of the Court below is set aside and the Civil Revision Petition is allowed. No costs. Consequently, the connected Miscellaneous Petitions are closed.
11.01.2012 Index: Yes/No. Internet: Yes/No. kr.
To The Principal District Munsif-cum Judicial Magistrate, Principal District Munsif Court, Chengam.
R.S.RAMANATHAN,J.
kr.
C.R.P.(NPD)No. 3512 of 2007and M.P.Nos.1 to 3 of 2009 11.01.2012