Madras High Court
Mukanchand Bothra @ vs Kulwant Singh on 10 January, 2012
Author: R.Mala
Bench: R.Banumathi, R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.01.2012 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MS. JUSTICE R.MALA O.S.A.Nos.248 and 249 of 2010 Mukanchand Bothra @ Mayavaram Bothra .. Appellant in both O.S.As. Vs. 1.Kulwant Singh 2.Hymavathi Constructions, A partnership firm, rep. by its Managing Partner V.T.V.Sharma 3.Anita Kapoor 4.Assistant Registrar, Original Side High Court of Judicature at Madras High Court Campus, Chennai-104. .. Respondents in both O.S.As. Original Side Appeals filed under Order XXXVI Rule 9 of Original Side Rules and clause 15 of the Letters Patent, against the order dated 24.02.2010 made in A.No.6341 of 2009 & O.A.No.638 of 2007 respectively in C.S.No.456 of 2007 on the file of this Court. For Appellant : Mr.S.V.Jayaraman, senior counsel for Mr.T.Dhanasekaran For R1 : Mr.T.Poornam For R2 : Mr.P.V.Balasubramanian For R3 : Mr.C.T.Mohan For R4 : Batta due C O M M O N J U D G M E N T
R.MALA,J.
Original Side Appeals arise out of the order dated 24.02.2010 made in A.No.6341 of 2009 & O.A.No.638 of 2007 respectively in C.S.No.456 of 2007.
2.First respondent herein as a plaintiff filed a suit in C.S.No.456 of 2007 for declaration that the decree passed in C.S.No.205 of 1999 is a nullity and not binding on the plaintiff and also declaration that the order dated 23.07.2004 passed by the Execution Court in E.P.No.100 of 2003, is a nullity and not binding on the plaintiff and declaration that the sale deed dated 10.02.2005 registered as Document No.1999/2005 on the file of the Sub-Registrar Office, Tirupporur, in respect of the suit scheduled property executed by the Registrar, High Court, Madras, in favour of the first defendant is null and void and non-est in the eye of law and for other reliefs.
3.During the pendency of the suit, first respondent herein filed an application in O.A.No.638 of 2007 for an injunction restraining the first defendant therein from seeking to do any act on the basis of the Sale deed dated 10.02.2005, executed in E.P.No.100 of 2003 in C.S.No.205 of 1999 and stating that he purchased the property from the lawful owner on 14.11.2003 and the appellant/first defendant herein has obtained a decree of specific performance on the basis of the sale agreement executed by the second defendant before this Court, but the property is situated out side of the jurisdiction of the Court and hence, the decree passed without territorial jurisdiction by this Court, is non-est in the eye of law. In pursuant of the same, the sale deed has been executed, which is void ab initio and hence, the first respondent herein sought for declaration.
4. During the pendency of the suit, the first defendant entered appearance and filed an application in A.No.6341 of 2009, to reject the plaint in C.S.No.456 of 2007 as not maintainable.
5.The first respondent herein as a plaintiff resisting A.No.6341 of 2009 stating that there is a substantial issue raised in the suit and hence, the suit cannot be rejected as not maintainable as abuse of process of Court. After hearing both sides, the learned Single Judge has dismissed the application in A.No.6341 of 2009 directing both the parties to maintain status-quo till the disposal of the suit in O.A.No.638 of 2007, against which, the present appeals have been preferred by the appellant/first defendant in the suit.
6.The appellant herein as an applicant filed an application in A.No.6341 of 2009 in C.S.No.456 of 2007 for rejecting the suit in C.S.No.456 of 2007. Mr.S.V.Jayaraman, the learned senior counsel appearing for the Appellant would raise the following points:
(i) The first respondent/plaintiff herein has no locus standi to question the validity of the decree passed in C.S.No.205 of 1999, since he purchased the property, after decree has been passed.
(ii)The appellant herein has entered into a sale agreement for the sale consideration of Rs.15,00,000/- whereas the first respondent herein has purchased the property only for Rs.8,50,000/- and the sale deed has been executed for defeating the right of the appellant/first defendant.
(iii)Appellant herein has filed O.S.No.1160 of 1997 for an injunction restraining the second respondent/second defendant not to alienate or encumber the suit property on the basis of the sale agreement executed in his favour. The first respondent herein purchased the property, after the decree has been passed. So he is not a bonafide purchaser for the value.
(iv)The appellant herein has obtained a valid decree and got the sale deed executed from Court of law. Now the first respondent herein has come forward with the suit for declaration that the decree is null and void. So the present suit filed by the first respondent herein is sheer abuse of process of law. So the suit has to be nipped out in budding stage. To substantiate his argument, he would rely upon the following decisions of the Apex Court and this Court:
(i) AIR 2007 SC 1332 (Sanjay Verma v. Manik Roy and others). AIR2004 SC 173(1) Bibi Zubaida Khatoon v. Nabi Hassan Saheb and another)
(ii)(2004) 3 SCC 137 (Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others)
(iii)(2005) 7 SCC 510 (Popat and Kotecha Property v. State Bank of India Staff Association)
(iv)1999 (1) L.W. 727 (Maria Soosan and another v. Esakkiammal)
7.Refuting the same, Mr.T.Poornam, the learned counsel appearing for the first respondent would raise the following points:
(i) Decree passed in C.S.No.205 of 1999 is non-est in the eye of law, since the Court has no territorial jurisdiction to entertain the suit.
(ii) Since the decree itself is non-est, there is a substantial issue raised in the suit. So the plaint cannot be rejected in budding stage.
(iii) The first respondent is a bonafide purchaser for value without notice of the legal proceedings. Hence he is a competent person to file a suit and question the validity of the decree passed in C.S.No.205 of 1999.
(iv) Since there is a substantial issue involved in the suit, it is not abuse of process of law.
Hence he prayed for the dismissal of the appeals. To substantiate his argument, he relied upon the following decisions:
(i)2001 (4) CTC 39 (Adcon Electronics Pvt. Ltd. v. Daulate and another)
(ii)1998 (1) LW 762 (A.Velliangiri (deceased) v. M/S. Ram Bahadur Takur (P) Ltd., Lahariasari, Durbanga District, Bihar State)
(iii)2000 (IV) CTC 479 (D.Hari Krishnan v. M.G.R.Memorial Charitable Trust)
(iv) 2006 (1) CTC 270 ( Thamiraparani Investments Pvt. Ltd., rep. by its Director V.Gopal v. Meta Films Pvt. Ltd.,)
(v)AIR 2005 SC 4446(Harshad Chiman Lal Modi v. D.L.F.Universal Ltd. and another)
(vi) (2007) 8 MLJ 843 (SC) Hasham Abbas Sayyad v. Usman Abbas Sayyad and others)
8.Considered the rival submissions made on both sides and the materials available on record.
9.The suit in C.S.No.456 of 2007 has been filed for following reliefs:
(i) Declaration that the decree dated 02.09.2002 passed by this Court in C.S.No.205 of 1999 is a nullity and not binding on the plaintiff;
(ii) Declaration that the order dated 23.07.2004 passed by the Execution Court in E.P.No.100 of 2003, is a nullity and not binding on the plaintiff;
(iii) Declaration that the sale deed dated 10.02.2005 registered as No.1999 of 2005, in respect of the suit scheduled property executed by the Registrar, High Court, Madras, in favour of the first defendant is null and void and non-est in law and to direct the defendants to pay the costs of the suit.
It is true that the second respondent herein is the owner of the property.
10.Admitted facts, which are as follows:
The second respondent is the owner of the property. On 01.02.1996, the Sale Agreement was entered into between the appellant and the second respondent for a sum of Rs.15,00,000/-. But subsequently, on 27.04.1996, the second respondent entered into a sale agreement with one Mr.R.J.Surendranath, husband of the third respondent herein. On 24.05.1996, second respondent executed a registered power of attorney in favour of the third respondent. On 31.05.1996, second respondent issued a letter to the appellant herein for cancelling the sale agreement dated 01.02.1996 and refund the part of the advance amount paid by him. On 09.09.1996, Appellant herein has sent a legal notice to the second respondent. After receipt of the notice, second respondent sent a reply on 13.10.1996, requesting to receive back the advance amount. The appellant herein filed a suit in O.S.No.1160 of 1997 against the second respondent on the file of the City Civil Court, Chennai, for permanent injunction not to alienate the suit property and the same was decreed on 19.02.1999, after contest. In the meanwhile, the appellant herein filed C.S.No.205 of 1999 for specific performance and also alternatively prayed for directing the defendant to refund a sum of Rs.4,85,000/- which he paid as an advance and sale price together with an interest. The suit was decreed as ex-parte on 02.09.2002. Then, Execution Proceedings has been filed and the sale deed has been executed by this Court on 10.02.2005 in favour of the appellant herein. In the mean while, the third respondent has executed the sale deed in favour of the first respondent on 14.11.2003 and he was put into possession. The first respondent herein filed W.P.No.15967 of 2009 re-transferring the electricity service connection in his name from the sixth respondent/appellant herein and obtained an order. Now on the basis of the sale deed executed by this Court, the appellant herein is claiming title to the suit property. So the first respondent filed a suit in C.S.No.456 of 2007 for declaration that the decree passed in C.S.No.205 of 1999, Execution Proceedings and also sale deed dated 10.02.2005, are null and void and also for other consequential reliefs.
11.The appellant herein has filed an application in A.No.6341 of 2009 in C.S.No.456 of 2007 under Order VII Rule 11 of C.P.C. for rejection of the plaint in C.S.No.456 of 2007 as not maintainable. Now it is appropriate to incorporate Order VII Rule 11 of C.P.C.
"11. Rejection of Plaint The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
[(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9];
[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.] HIGH COURT AMENDMENT (MADRAS): For clause (c) substitute the following:
"(c) Where the relief claimed is property valued, but the plaint is written on paper insufficiently stamped, and the plaintiff does not make good the deficiency within the time, if any, granted by the Court."
12.Mr.S.V.Jayaraman, the learned senior Counsel would submit that the ground for rejection of plaint is that the suit filed by the first respondent is abuse of process of law, since the appellant herein has obtained a decree in the Court of law. On that basis only, the sale deed has been executed. So the first respondent is not a bonafide purchaser. The main contention of the learned senior counsel is that the first respondent is not a bonafide purchaser. After decree of specific performance has been passed, he purchased the property. Therefore, he has no locus standi to file a suit and question the validity of the decree passed by this Court in C.S.No.205 of 1999. Now this Court has to decide whether the first respondent has locus standi to file a suit?
13.The first respondent has purchased the property during the pendency of the suit. The suit was decreed on 02.09.2002. But the first respondent purchased the property on 14.11.2003, after a decree of specific performance passed in favour of the appellant herein. Therefore, the appellant filed E.P.No.100 of 2003 against the second respondent. But the sale deed has been executed only on 10.02.2005. Execution proceedings is only a continuation of the suit. Hence, the sale deed in favour of the first respondent dated 14.11.2003 is hit by lis. Since he has purchased the property during the pendency of the suit, he comes under the purview of Section 52 of the Transfer of Property Act that he is "Pendente Lite" purchaser.
14.It is also true, the appellant herein has filed O.S.No.1160 of 1997 before City Civil Court, Chennai, for permanent injunction restraining the second respondent herein not to alienate or encumber the suit property. Even though the second respondent herein has contested the suit, the suit was decreed on 19.02.1999. But the sale deed has been executed only on 14.11.2003. In such circumstances, we agree with the argument that the first respondent herein has purchased the property during the pendency of the civil proceedings and whether the first respondent is a bonafide purchaser for value is decided only at the time of trial.
15.Mr.T.Poornam, the learned counsel appearing for the first respondent would submit that the suit in C.S.No.456 of 2007 is not abuse of process of law and a substantial issue has been raised, since C.S.No.205 of 1999 is a suit for specific performance and it is a suit for land. It is further submitted that admittedly, the suit property is situated outside of the jurisdiction of this Court and hence, the decree passed by this Court not having jurisdiction to entertain the suit is non-est in the eye of law.
16.Let us consider the decisions relied upon by both sides counsel.
(i) AIR 2007 SC 1332 (Sanjay Verma v. Manik Roy and others). He submitted that doctrine of lis pendens is based on equity, good conscience and justice and furthermore, he relied upon para-12, which is held as follows:
"12.The principles specified in Section 52 of the T.P. Act are in accordance with equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodied in Section 52 of the T.P. Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The Section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court. "
In the above citation, it was held that the alienation during the pendency of the suit will in no manner affect the rights of the other party under any decree. There is no quarrel over the proposition.
(ii)AIR2004 SC 173(1) (Bibi Zubaida Khatoon v. Nabi Hassan Saheb and another) in para-9 and 10, it is held as follows:
"9.It is not disputed that the present petitioner purchased the property during pendency of the suit and without seeking leave of the Court as required by Section 52 of the Transfer of Property Act. The petitioner being a transferee pendente lite without leave of the Court cannot, as of right, seek impleadment as a party in the suits which are long pending since 1983. It is true that when the application for joinder based on transfer pendente lite is made, the transferee should ordinarily be joined as party to enable him to protect his interest. But in instant case, the trial court has assigned cogent reasons for rejecting such joinder stating that the suit is long pending since 1983 and prima facie the action of the alienation does not appear to be bona fide. The trial Court saw an attempt on the part of the petitioner to complicate and delay the pending suits.
10.The decisions cited and relied on behalf of the appellant turned on the facts of each of those cases. They are distinguishable. There is no absolute rule that the transferee pendente lite without leave of the Court should in all cases be allowed to join and contest the pending suits. The decision relied on behalf of the contesting respondents of this Court in the case of Savinder Singh (supra) fully supports them in their contentions. After quoting Section 52 of the Transfer of Property Act, the relevant observations are thus :-
"Section 52 of the Transfer of Property Act envisages that :-
'During the pendency in any court having authority within the limits of India .... of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.' It would, therefore, be clear that the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the Court. Admittedly, the authority or order of the Court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit. "
Considering the above citation, since the first respondent herein has purchased the property during the pendency of execution proceedings in C.S.No.205 of 1999, he is "Pendente lite" purchaser.
17.Mr.T.Poornam, the learned counsel appearing for the first respondent would submit that the suit in C.S.No.205 of 1999 has been pending before this Court not having territorial jurisdiction will not be the lis as per Section 52 of Transfer of Property Act. In 'Explanation' of Section 52 of Transfer of Property Act, it was specifically mentioned that the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree. But here, this Court has no territorial jurisdiction. Hence, no suit is pending in the competent jurisdiction. So he is not a "Pendente lite" purchaser. The suit is in initial stage and only written statement is yet to be filed. In such circumstances, we are of the view that it is unsafe to decide that whether the first respondent is a "Pendente lite" purchaser or bonafide purchaser.
18.Now this Court has to decide whether the suit filed by the first respondent is sheer abuse of process of law. At this juncture, it is appropriate to consider the decisions relied upon by both sides.
(i) 1999 (1) L.W. 727 (Maria Soosan and another v. Esakkiammal) in para-13, it is held as follows:
"13. In a recent decision of the Honourable Supreme Court reported in 1998 (2) AIR SCW 1166 (K.K. Modi v. K.N. Modi) Their Lordships have considered as to what is meant by 'abuse of process of Court'. Paragraphs 42 to 46 are relevant for our purpose, and the read thus:
"Under Order 6, Rule 16, the court may, at any stage of the proceedings, order to be struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the Court. Mulla in his treatise on the Code of Civil Procedure, (15th Edition, Volume II, page 1179, note 7) has stated that power under clause (c) of 0.6, Rule 16 of the Code is confined to cases where the abuse of the process of the court is manifest from the pleadings, and that this power is unlike the power under Section 151, whereunder Courts have inherent power to strike out pleadings or to stay or dismiss proceedings which are an abuse of their process. In the present case the High Court has held the suit to be an abuse of the process of Court on the basis of what is stated in the plaint.
The Supreme Court Practice 1995 published by Sweet and Maxwell in paragraph 18/19/33 (page 344) explains the phrase "abuse of the process of the court" thus: "This term connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation.... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material."
One of the examples cited as an abuse of the process of Court is re-litigation. It is an abuse of the process of the court and contrary of justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. The re-agitation may or may not be barred as res judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of the Court. A proceedings being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the Court. Frivolous or vexatious proceedings may also amount to an abuse of the process of Court especially where the proceedings are absolutely groundless. The Court then has the power to stop such proceedings summarily and prevent the time of the public and the Court from being wasted. Undoubtedly, it is a matter of Courts' discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The Court should also be satisfied that there is no chance of the suit succeeding. .. .."
There is no quarrel over the above proposition. But the above citation is not applicable to the facts of the present case. Because, under Order VI, Rule 16 of C.P.C, the court may at any stage of the proceeding, order to strike out any matter in any pleading which is otherwise an abuse of the process of the Court. But the application is not filed under Order VI, Rule 16 of C.P.C for struck out the pleading. In such circumstances, the above citation is not applicable to the facts of the present case.
(ii) (2004) 3 SCC 137 (Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others) in which, it is held as follows:
The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, Order 10 CPC is a tool in the hands of the courts and by resorting to it and by a searching examination of the party, in case the court is prima facie persuaded of the view that the suit is an abuse of the process of the court, in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 can be exercised."
The basic question to be decided while dealing with an application filed under Order 7 Rule 11(a) CPC is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get around Order 7 Rule 11. The trial Court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11(a) taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. It is true that by ingenious drafting a cause of action in the nature of red herrings cannot be brought into the judicial arena."
(iii) (2005) 7 SCC 510 (Popat and Kotecha Property v. State Bank of India Staff Association) in para-20, it is held as follows:
"20. .. .. The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, Order 10 of the Code is a tool in the hands of the courts by resorting to which and by searching examination of the party in case the court is prima facie of the view that the suit is an abuse of the process of the court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised."
There is no quarrel over the above proposition. It is true, as per the catena of the above said decision, it is well settled proposition that in case the Court is prima facie of the view that the suit is an abuse of the process of the Court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order VII Rule 11 of the Code can be exercised. So the application filed under Order VII Rule 11 of C.P.C. is maintainable provided the appellant herein has to prove that the present suit is bogus and abuse of process of law.
19.Admittedly, the suit property is situated out side of the jurisdiction of this Court, whereas C.S.No.205 of 1999 has been filed before this Court. It is appropriate to consider Clause-12 of the Madras High Court Original Side Rules, which is as follows:
"12.Original jurisdiction as to suits.- And we do further ordain that the said High Court of Judicature at Madras, in exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try, and determine suits of every description if, in the case of suits for land or other immovable property, such land or property shall be situated, or, in all other cases, if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court: or if the defendant at the time of the commencement of the suit shall dwell or carry on business or personally work for gain, within such limits; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause at Madras, in which the debt or damage, or value of the property sued for does not exceed hundred rupees."
It was submitted by the learned counsel for the first respondent that the property is situated out side of the jurisdiction, so the decree passed in C.S.No.205/1999 is non-est in the eye of law. On perusal of the plaint, the main prayer itself is to declare that the decree passed in C.S.No.205/1999 is illegal and not binding. So it is a issue to be decided at the time of trial.
20.At this juncture, the learned counsel for the first respondent has relied upon the following decisions:
(i)2001 (4) CTC 39 (Adcon Electronics Pvt. Ltd. v. Daulate and another) in paragraphs-15 to 18, it is held as follows:
"15.From the above discussion it follows that a "suit for land" is a suit in which the relief claimed relates to title to or delivery of possession of land or immovable property. Whether a suit is a "suit for land or not has to be determined on the averments in the plaint with reference to the reliefs claimed therein; where the relief relates to adjudication of title to land or immovable property or delivery of possession of the land or immovable property, it will be a "suit for land". We are in respectful agreement with the view expressed by Mahajan.J. in M/s.Moolji Jaitha's case (supra).
16.In a suit for specific performance of contract for sale of immovable property containing stipulation that on execution of the sale deed the possession of the immovable property will be handed over to the purchaser, it is implied that delivery of possession of the immovable property is part of the decree of specific performance of contract. But in this connection it is necessary to refer to Section 22 of the Specific Relief Act, 1963 which runs :
"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, 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 sub-section (1) shall be 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 my be just for including a claim for such relief.
17.It may be seen that sub-section (1) is an enabling provision. A plaintiff in a suit of specific performance may ask for further reliefs mentioned in clauses (a) and (b) therefore. Clause (a) contains reliefs of possession and partition and separate possession of the property, in addition to specific performance. The mandate of sub-section (2) of Section 22 is that nor relief under clauses (a) and (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed. Thus it follows that no Court can grant the relief of possession of land or other immovable property, subject-matter of the agreement for sale in regard to which specific performance is claimed, unless the possession of the immovable property is specifically prayed for.
18.In the instant case the suit is for specific performance of agreement for sale of the suit property wherein relief of delivery of the suit property has not been specifically claimed as such it cannot be treated as a "suit for land".
(ii)1998 (1) LW 762 (A.Velliangiri (deceased) v. M/S. Ram Bahadur Takur (P) Ltd., Lahariasari, Durbanga District, Bihar State) in which, it is held as follows:
"It is not disputed that the suit schedule properties are situated outside the original jurisdiction of this Court. The reliefs sought for in the suit include a decree for specific performance against defendants 1 and 4 to execute a sale deed in favour of the plaintiff, transferring and conveying the property described in the schedule, and directing the defendants, specially fourth defendant to deliver vacant possession of the suit property to the plaintiff. As can be seen from the averments made in paragraphs 23 to 25 of the plaint, the plaintiff has questioned the validity of the permission obtained by defendants 1 and 4 from the Reserve Bank of India. The learned single Judge in his well considered Judgment, referring to several decisions, concluded that the leave granted earlier to file the suit had to be revoked as prayed for in Application No. 1818/87 since the suit is for land coming within the ambit of first part of Clause 12 of the Letters Patent, and that the suit properties are situated outside the jurisdiction of this Court. The fourth defendant in the case on hand has to convey title over the suit property to the plaintiff in the event the plaintiff succeeds. It means, his title over the suit property would be affected. Added to this he has to deliver possession of the suit properties also. Under the circumstances, as rightly held by the learned single Judge, the present suit involves title to the property because fourth defendant has got title vested in him and that is sought to be disturbed by the plaintiff on the basis of the earlier contract between him and the first defendant. Hence we hold that the present suit is for land, keeping in view the law laid down by the Federal Court and various other decisions referred to by the learned single Judge. "
(iii) 2000 (IV) CTC 479 (D.Hari Krishnan v. M.G.R.Memorial Charitable Trust) in para-8 to 10, it is held as follows:
"8. The learned counsel for the respondent further relied on the decision of this Court in A. Velliangiri (deceased) and 3 others v. M/s Ram Bahadur Takur (P) Ltd. and 3 others, 1998 (I) CTC 436. The above decision arose in a suit praying for a decree for specific performance against the defendants and directing the defendants to execute the sale deed in favour of the plaintiffs and the properties were situated outside the jurisdiction of the Original Side of the High Court. The Division Bench, in the above decision, held that the suit involves title to the property and the suit is for land coming within the scope of clause 12 of the Letters Patent and the suit properties being situated outside the jurisdiction of this Court, the leave granted earlier was rightly revoked by the learned Single Judge.
9. Applying the ratio of the above judgments, it follows that the suit involving claims regarding title to the property or to the possession of the property are "suits for land".
10. As already seen, the above suit is one for recovery of possession of immovable property, situated outside the jurisdiction of the Original Side of this Court and the present suit is for land coming within the scope of Clause 12 of the Letters Patent of this Court and hence this Court has no jurisdiction to entertain the suit. Therefore, we do not find any reason to different with the conclusion arrived at by the learned single judge."
(iv) 2006 (1) CTC 270 ( Thamiraparani Investments Pvt. Ltd., rep. by its Director V.Gopal v. Meta Films Pvt. Ltd.,) in para-12, it is held as follows:
"12. Further, a reading of paragraph 20 of the plaint clearly shows that the allegation of the plaintiff is that since the defendant is encroaching upon the suit "A" schedule property which is beyond the territorial jurisdiction of this Court, the plaintiff has sought for a decree for permanent injunction. It is not disputed that the registered office of the defendant is at No. 157/1, G.N.T. Road, Chinnambedu Post, Kavarapet-601 206, Tiruvallur District, which is situated outside the jurisdiction of this Court and the defendant has no office within the jurisdiction of this Court. The present suit being one for bare injunction, it is a suit for land. In other words, it is a suit for the purpose of acquiring possession of or safeguarding possession of or establishing title to or a right in land viz., the suit schedule property. It is well settled that the expression 'suit for land' should not be confined and limited to suits for recovery of possession of land or to obtain a declaration of title to land only. The present suit being one for control of land lying outside the jurisdiction of this Court, this Court has no jurisdiction to entertain the suit and consequently, the learned single Judge has rightly revoked the leave.
So we are of the view that the decree passed in specific performance is suit for land. Admittedly, the property situated outside the jurisdiction of this Court
21.Mr.T.Poornam, the learned counsel for the first respondent would submit that the decree passed by this Court, which does not have jurisdiction to decide the matter, is void as being against public policy. He further relied upon the following decisions:
(i) AIR 2005 SC 4446(Harshad Chiman Lal Modi v. D.L.F.Universal Ltd. and another) in para-27, 28, 31 and 32, it is held as follows:
"27.Ms. Malhotra, then contended that Section 21 of the Code, requires that the objection to the jurisdiction must be taken by the party at the earliest possible opportunity and in any case where the issues are settled at or before settlement of such issues. In the instant case, the suit was filed by the plaintiff in 1988 and written statement was filed by the defendants in 1989 wherein jurisdiction of the court was 'admitted'. On the basis of the pleadings of the parties, issues were framed by the court in February, 1997. In view of the admission of jurisdiction of court, no issue as to jurisdiction of the court was framed. It was only in 1998 that an application for amendment of written statement was filed raising a plea as to absence of jurisdiction of the court. Both the courts were wholly wrong in allowing the amendment and in ignoring Section 21 of the Code. Our attention in this connection was invited by the learned counsel to Hira Lal v. Kali Nath, (1962) 2 SCR 747 and Bahrein Petroleum Co. v. Pappu, 1966 (1) SCR 461.
28.We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is nullity.
31. In Kiran Singh v. Chaman Paswan, (1955) 1 SCR 117 : AIR 1954 SC 340, this Court declared;
"It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction ... strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties."
(emphasis supplied)
32.The case on hand relates to specific performance of a contract and possession of immovable property. Section 16 deals with such cases and jurisdiction of competent court where such suits can be instituted. Under the said provision, a suit can be instituted where the property is situate. No court other than the court where the property is situate can entertain such suit. Hence, even if there is an agreement between the parties to the contract, it has no effect and cannot be enforced."
(ii)(2007) 8 MLJ 843 (SC) Hasham Abbas Sayyad v. Usman Abbas Sayyad and others) in para-24, it is held as follows:
"24.We may, however hasten to add that a distinction must be made between a decree passed by a Court which has no territorial or pecuniary jurisdiction in the light of Section 21 of the Code of Civil Procedure; and a decree passed by a Court having no jurisdiction in regard to the subject matter of the suit. Whereas in the former case, the appellate Court may not interfere with the decree unless prejudice is shown, ordinarily the second category of the cases would be interfered with."
We do not propose to express any opinion on the merits of the matter. Whether the decree is valid or void is to be decided only after letting oral and documentary evidence. So the substantial issue has been raised in C.S.No.456 of 2007, since the first respondent is a "Pendente lite" purchaser, an opportunity must be given to him to putforth his case. Hence, it is not a case of abuse of process of law. So we are of the considered view that the suit in C.S.No.456 of 2007 is not an abuse of process of law. It is a settled position in law that while dealing with an application under Order 7 Rule 11 of C.P.C. consideration of written statement is not a condition precedent and only averments in the plaint have to be considered. Therefore, considering the averments in the plaint, first respondent has pleaded that the appellant has obtained a decree of specific performance from the Court not having territorial jurisdiction, hence it is non-est in the eye of law and null and void. Considering the averments, there is a substantial issue raised in the suit for consideration. The learned Single Judge in para-23 of his order has correctly held as follows:
"23.I am not for a moment recording a finding that the plaintiff in C.S.No.456 of 2007 is a bonafide purchaser. Whether he is one or not a question of fact to be decided after trial."
22.In para-24 of his order, the learned Single Judge has specifically mentioned that the plaint in C.S.No.456 of 2007 cannot be rejected very lightly, without a trial. As already discussed by us that a substantial issue has been raised whether the decree passed by this Court without jurisdiction is null and void and whether the first respondent is a bonafide purchaser for value without notice to be decided only at the time of trial. Hence, we concur with the findings of the learned Single Judge that there is an issue raised by the plaintiff in C.S.No.456 of 2007 very substantial in nature. Hence, an opportunity must be given to both the parties to let in oral and documentary evidence.
23.The learned Single Judge has made observations in para-20 to 22 of his order, which clinches the main issue in respect of the validity of the decree. The issue can be decided only after giving opportunity to both sides to let in oral and documentary evidence. If the observations made in para-20 to 22 are not eschewed, it will influence the mind of the learned Single Judge while disposing the original suit. In such circumstances, we are of the view that the observations made in para-20 to 22 are liable to be eschewed. Hence it is hereby eschewed. It is true, if the suit is vexatious and abuse of process of law, that suit will be nipped out in budding stage. But here, the facts and circumstances of the case has prima facie proved that the issue raised substantial in nature which has to be decided after letting oral and documentary evidence. That factum has been considered by the learned Single Judge. Hence we do not find any reason warranting interference with the findings of the learned Singe Judge in respect of rejection of plaint. Hence, A.No.6341 of 2009 in C.S.No.456 of 2007 is dismissed.
24.O.A.No.638 of 2007:
O.A.No.638 of 2007 in C.S.No.456 of 2007 has been filed for an interim injunction restraining the first defendant therein from seeking to do any act on the basis of the sale deed dated 10.02.2005, executed in E.P.No.100 of 2003 in C.S.No.205 of 1999. Admittedly, the appellant herein has obtained a decree from this Court of law and sale deed also executed in his favour on 10.02.2005. Per contra, the first respondent herein has purchased the property on 14.11.2003 and in pursuant of the same, the original title deeds pertaining to the suit property has been handed over to him. He also filed W.P.No.15967 of 2009 against the Chairman, Tamil Nadu Electricity Board and others. The appellant herein was ranked as sixth respondent therein. The first respondent prayed for Writ of Mandamus to direct the respondents 1 to 5 forthwith retransfer in the name of the petitioner from the sixth respondent/the appellant herein the Electricity connection No.579003-1222 in premises bearing Plot No.31, Survey Nos.268/2 and 269/1 at Sulerikadu Village, Nemmeli Village, Chengalpattu. In para-13 of the order dated 02.09.2009 made in W.P.No.15967 of 2009, in which, it is stated as follows:
"13.In view of the stated position, I am inclined to direct the respondents 1 to 5 to forthwith retransfer in the name of the petitioner from the sixth respondent the Electricity Connection No.579003-1222 in premises bearing Plot No.31, Survey Nos.268/2 and 269/1 at Sulerikadu Village, Nemmeli Village, 113, Chengalpattu. The said exercise has to be carried out by the respondents 1 to 5 within a period of two weeks from the date of receipt of a copy of this order. Thereafter, it is open to the respondents 1 to 5 to hear the petitioner as well as the sixth respondent and proceed with the matter by passing a suitable order in this regard. If the order is adverse to the petitioner or the sixth respondent, it is open to them to challenge the same in the manner known to law. The writ petition is ordered. No costs. The connected miscellaneous petition is closed. "
Both the appellant and the first respondent are claiming title under documents i.e. the appellant herein has obtained a sale deed from the Court of law. The first respondent has obtained a sale deed from the power of attorney of the second respondent (i.e.) the third respondent. Subsequently, Electricity Service Connection has been transferred in the name of the first respondent on the basis of the order passed by the learned Single Judge in W.P.No.15967 of 2009. In such circumstances, the learned Single Judge has ordered directing the parties to maintain the status-quo till the disposal of the suit. So we are of the view that the learned Single Judge has considered this aspect in a proper perspective and hence we do not find any reason warranting interference with the findings of the learned single Judge in this aspect.
25.In the result, Original Side Appeals are dismissed. However, the observation made in para-20 to 22 of the order passed by the learned Single Judge is ordered to be eschewed. Both the parties are directed to bear their own costs. Consequently, connected Miscellaneous Petitions are closed.
kj To The Sub Assistant Registrar, Original Side, High Court, Madras