Karnataka High Court
E. Jayaram And Anr. vs Lakshmi Alias Bhagyalakshmi And Anr. on 29 August, 2005
Equivalent citations: ILR2005KAR4862, 2006(5)KARLJ510
Author: Anand Byrareddy
Bench: Anand Byrareddy
ORDER II RULE 2-LEAVE OF COURT-TRANSFER OF PROPERTY ACT 1882- SECTION 53-A-PART PERFORMANCE OF CONTRACT(AGREEMENT OF SALE)-BARE INJUNCTION SUIT-Filed without seeking leave of the Court to reserve the right to sue for any other relief to seek specific performance of the agreement of sale-Is the respondent barred from claiming the relief of specific performance-HELD-If respondent is barred from claiming any relief of specific performance, the incidental relief of injunction in aid of a possible relief of specific performance would be unavailable to the respondent. B) CODE OF CIVIL PROCEDURE-1908-ORDER II RULE 2-LEAVE OF COURT-TRANSFER OF PROPERTY ACT 1882-SECTION 53-A-Part performance of contract (Agreement of Sale)-Respondent put in possession of the Schedule property by virtue of agreement of sale-Whether Section 53A would statutorily protect the possession of respondent-Whether the respondent who is put in possession on the property whether can he lease out the property in favour of third party-HELD-The Section requires that the agreement holder in possession ought to be ready and willing to perform his part of the contract. Moreover, the agreement holder or his nominee should claim a right expressly conferred under the contract. The respondent cannot claim the right to lease out the property in favour of a third party. Such a right not being expressly conferred under the agreement of sale, it cannot be gainsaid that the respondent was enabled under the agreement to, induct third party as a tenant and that the third party could claim under the respondent and seek to protect his possession. It is open for the appellant to sue for ejectment of the 3rd party on the ground that tenancy, which he alleges, is terminated. Since the respondent is no longer in a position to seek enforcement on the agreement of sale and not having sought leave of the Court to reserve the right to seek such a relief from the Court under Order II Rule 2 of CPC, while filing the suit for bare injunction the appellant is entitled to initiate such action as may be open to him to seek ejectment of respondents 1 and 2 from the suit property. Appeal Partly allowed. JUDGMENT Anand Byrareddy, J.
1. The appeal coming up for admission is admitted and by consent of the Counsel, taken up for final disposal.
2. The Appellant contends that the execution of the agreement of sale in favour of respondent No. 1 is denied. However, the construction of a house was at the instance of the appellant himself and submits that respondent No. 2 in fact has been inducted by the appellant himself and hence the suit filed by respondent No. 1 is false and frivolous and alleges that respondent No. 2 is in fact a tenant under the appellant.
4. Per contra, Counsel for Respondent No. 1 submits that an agreement of sale in fact has been executed and possession has been delivered under the said agreement. Since there was a legal embargo and it is a fact that though possession was delivered, the sale transaction was not completed and respondent was always ready and willing to complete the sale transaction and with the full knowledge of the appellant constructed the suit property and at the time when respondent No. 1 had inducted respondent No. 2 as a tenant, the appellant interfered claiming that respondent No. 2 is a tenant under the appellant and not under her. That the suit property has been constructed by her and not by the appellant and a suit has been filed claiming that in terms of Section 53-A of the Transfer of property Act, 1882, the second respondent is entitled to be protected. The Trial Court, prima facie, has found that even according to the appellant, respondent No. 2 being in possession, the possession of respondent No. 2 has to be protected and therefore granted an order of injunction and this Court may not interfere with it unless it is demonstrated that the Court has acted arbitraritly or capriciously committed a palpable legal error in granting the order of temporary injunction.
6. He would further rely upon the judgment of this Court in the case of Eramma v. Puttamma, 1971(2) ML.J. 179 that the Suit for injunction in terms of Section 53A is maintainable as in the present legal scenario Section 53-A affords not merely a ground of defence but also would be a ground to file a suit for protection of possession.
7. The Trial Court has over simplified the matter in holding that respondent No. 2 has demonstrated possession and, therefore, the relief of injunction has to be granted. It is to be seen that the suit is for a bare injunction by an agreement holder. The agreement is of the year 1983. Though, respondent No. 1 claims that she is ready and willing to perform her part of the contract, the fact that suit for bare injunction is filed in the face of Order II Rule 2 of the code of Civil Procedure, 1908, without seeking leave of the Court to reserve the right to sue for any other relief would preclude respondent No. 1 to seek specific performance of the agreement of sale at this point of time. In the light of this, if respondent is barred from claiming any relief of specific performance, the incidental relief of injunction in aid of a possible relief of injunction in aid of a possible relief of specific performance would be unavilable to the respondent. Secondly, the ground that in part performance of the agreement, respondent having been put in possession of the schedule property, Section 53A would statutorily protect the possession of the respondent No. 1 is not wholly correct. The Section requires that the agreement holder in possession ought to be ready and willing to perform his part of the contract and secondly, the agreement holder or his nominee should claim a right expressly conferred under the contract, in the instant case, Respondent No. 1 cannot claim the right to lease out the property in favour of a third-party. Such a right not being expressly conferred under, the agreement of sale, it cannot be gainsaid that respondent No. 1 was enabled under the agreement to induct respondent No. 2 as a tenant and that respondent No. 2 could claim under respondent No. 1 and seek to protect his possession. Be that as it may, it would be open for the appellant herein to sue for ejectment of respondent No. 2 on the ground that tenancy, which he alleges, is terminated. In the face of the fact that respondent No. 1 is no longer in a position to seek enforcement of the agreement of sale and not having sought leave of the Court to reserve the right to seek such a relief from the court under Order II Rule 2 of the Code of Civil Procedure, 1908, while filing the present suit for bare injunction, I deem it fit to render the following judgment.
The appeal is partly allowed. The order of the Trial Court in favour of Respondent No. 1 is set aside.
The Appellant is entitled to initiate such action as may be open to him to seek ejectment of respondents 1 and 2 from the suit property. The possession of respondent No. 2 shall not however be disturbed otherwise than under due process of law.