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9. The aforesaid order of the learned single Judge has now been assailed in the appeal.

10. The basic plea as canvassed by learned counsel for the appellant was that the nature of the suit in the present case was not a suit for land as the relief was only for specific performance simplicitor without the relief of possession and, thus, Section 16 of the said Code would not apply, but Section 20 of the said Code would be applicable. To buttress his submissions, learned counsel strongly relied upon the judgment in Adcon Electronics Pvt. Ltd. v. Daulat & Anr., (2001) 7 SCC 698. It is in the context of clause 10 of the Letters Patent of Bombay High Court that it was held that a suit for specific performance of an agreement for sale of suit property without claim for delivery of possession could not be treated as a suit for land and was thereafter triable under clause 10, if other conditions thereunder are fulfilled. It was further observed that the relief of possession could be granted only if specifically prayed for and, thus, a suit for specific performance of contract for sale of land is a suit for enforcement of the terms of the contract and cannot be treated as a suit for land. The title of the land concerned is not subject matter of a suit for specific performance. Sub-section (1) of Section 22 of the SR Act was held to be an enabling provision and, thus, a plaintiff in a suit for specific performance may ask for further reliefs mentioned in clause

12. The effect of the aforesaid two judgments had been considered by one of us (Sanjay Kishan Kaul, J.) in Bhawna Seth v. DLF Universal Limited & Anr., 138 (2007) DLT 639. The plaintiff had filed a suit for specific performance of agreement relating to a space in a shopping mall located in Gurgaon. The prayer was for a decree seeking execution of the sale deed and the relief for possession was not specifically claimed. The discussion revolved around the judgment in Harshad Chiman Lal Modi‟s case (supra) not taking note of the judgment in Adcon Electronics Pvt. Ltd.‟s case (supra) specifically praying for the relief of possession which was the position in Bhawna Seth‟s case (supra). Thus, the distinction __________________________________________________________________________________________ made in Adcon Electronics Pvt. Ltd.‟s case (supra) in respect of the suit for specific performance simplicitor and the suit for possession of the property were said to be the distinguishing factor. On analysis of other judgments, the stand of the plaintiff was upheld that the absence of relief of possession made the principles of Adcon Electronics Pvt. Ltd.‟s case (supra) applicable, while Harshad Chiman Lal Modi‟s case (supra) was, thus, held applicable in the facts where the relief of possession was specifically claimed. We were informed that no appeal had been filed before the Division Bench against this judgment. This fact was verified by the Registry.

15. The pleas of learned senior counsel for the respondent are really on alternative submissions. The initial plea is that the bar of Section 16 of the said Code was fully attracted and that the judgment of Adcon Electronics Pvt. Ltd.‟s case (supra) would only apply within the scope of clause 10 of the Letters Patent of the Bombay High Court, which is not so in the present case. The fact that Bhawna Seth‟s case (supra) relied upon Rohit Kochhar‟s case (supra), which had been reversed by the Division Bench, was also plea advanced. But then, it was accepted that Rohit Kochhar‟s case (supra) has gone to the Supreme Court where interim orders were operating. The alternative plea was that in the given factual matrix, the plaint could not be said to be one claiming the relief of specific performance simplicitor as rights of usage of common __________________________________________________________________________________________ passages, entrances, terrace, common facilities and easements had also been sought, which were in the nature of possession. Further, all permissions were required to be obtained at Nainital for which relief had been claimed.

16. We are in a legally fluid situation on the basic plea of a distinction between a suit for specific performance simplicitor and a suit where the relief for possession is also claimed. It is our view that the principles set out in Adcon Electronics Pvt. Ltd.‟s case (supra) would come into play where no relief of possession was claimed. The field of the factual matrix would be material to determine whether the principles of Adcon Electronics Pvt. Ltd.‟s case (supra) would come into play or not. But then in Vipul Infrastructure Developers Ltd.‟s case (supra), a co-ordinate Bench of this Court had taken a different view without specifically discussing this aspect. The matter is little more complicated arising out of the pendency of the SLP against that Order of the Division Bench where interim orders are operating.