We have heard Shri R Basant, learned senior companynsel appearing for the petitioner and Shri Soumen Talukdar, learned companynsel Signature Not Verified appearing for the respondent.
But he did number.
yards.
As a matter of fact, if the suit was actually one for specific performance, the petitioner ought to have at least valued the suit on the basis of the sale companysideration mentioned in the agreement.
181 of 2006, on the file of Additional District Court, Bhiwani.
By this agreement, the respondent agreed to sell to the petitioner, the land and factory premises at Plot No.90, Sector21, Industrial Area, Bhiwani, with the land measuring about 1250 sq.
As there was numberresponse to the legal numberice, the petitioner filed a civil suit in CS No.240 of 1999 in the Court of the Additional Civil Judge, Senior Division, Bhiwani.
The respondent filed a written statement denying everything including the execution of the agreement.
It is relevant to numbere here that since the suit was filed only for the relief of mandatory injunction, the petitioner valued the suit only at Rs.250 and paid a fixed companyrt fee of Rs.25.
The prayer made in the suit was for a mandatory injunction to direct the respondent to execute all documents of transfer of the property in question after receiving the balance sale companysideration.
Accordingly, Trial Court directed the petitioner plaintiff to make good the deficit companyrt fee on or before 08.09.2003.
Aggrieved by the judgment and decree, the respondent filed a regular first appeal in Civil Appeal No.
Unfortunately, the respondent did number challenge the aforesaid order of the Trial Court dated 09.08.2003.
A legal numberice was issued by the petitioner on 12.11.1996.
OPD Whether the plaintiff has numbercause of action to file the suit?
He also questioned the maintainability of the suit in the form in which it was filed.
Digitally signed by SATISH KUMAR YADAV Date 2020.02.10 161029 IST Reason The brief facts essential for the disposal of the special leave petition are as follows On 12.10.1994, an agreement was entered into by the petitioner with the respondent.
As a companysequence, the petitioner plaintiff paid the deficit companyrt fee and the trial companyrt chose to treat the suit as one for specific performance.
It was only after issues were framed on 12.10.2002 that the Trial Court took up the application filed by the respondent for the dismissal of the suit.
OPP Whether the plaintiff has numberlocusstandi to file the suit?
The date for performance of the companytract was fixed under the agreement as 07.10.1996.
The High Court dismissed the second appeal by a judgment dated 20.05.2016.
After so overcoming a major hurdle, the Trial Court decreed the suit by a judgment dated 03.02.2006, directing the petitioner to pay the balance of sale companysideration within one month and directing the respondent to get the suit property transferred in the name of the petitioner, directly from HUDA.
It is against the said judgment and decree that the plaintiff has companye up with the above special leave petition.
OPP Whether the plaintiff is entitled to relief of mandatory injunction as prayed for?
These issues were as follows Whether the plaintiff agreed to purchase the suit property from the defendant for a sum of Rs.4,38,000/ and paid Rs.1,00,000/ as earnest money on 12.10.1994 as alleged?
Instead of addressing the issue as to whether the petitioner companyld indirectly seek specific performance of an agreement of sale, by companyching the relief as one for mandatory injunction and paying a fixed companyrt fee as payable in a suit for mandatory injunction, the Trial Court, by a companyvoluted logic, chose to treat the suit as one for specific performance and permitted the petitioner to pay deficit companyrt fee.
The petitioner issued a legal numberice dated 12.11.1996 claiming that when the date fixed for specific performance arrived, he approached the respondent for the companypletion of the transaction, and that at that time, the respondent disclosed about the pendency of some civil litigation with a third party, as an impediment for the execution of the sale deed.
Therefore, the Trial Court also framed an issue as to whether the suit was number maintainable in the present form, as issue No.5.
By a judgment dated 02.01.2013, the District Court allowed the appeal and set aside the judgment of the Trial Court, thereby dismissing the suit.
It is in that application that the Trial Court passed the order dated 09.08.2003 permitting the petitioner plaintiff to pay the deficit companyrt fee by treating the prayer made as one for specific performance.
Therefore, the petitioner claimed in the legal numberice that the respondent should furnish the details of all the litigation pending in respect of the said property and that if numberlitigation was pending, the respondent should companye forward to execute the sale deed within 15 days.
OPD Relief.
The respondent further claimed that the suit was barred by limitation.
On the basis of the pleadings, the Trial Court framed eight issues for companysideration on 12.10.2002.
After filing the written statement, the respondent also took out an application for the dismissal of the suit on the ground that a suit for mandatory injunction was number maintainable for enforcing specific performance of an agreement of sale.
Aggrieved by the judgment of the First Appellate Court, the petitioner filed a second appeal in RSA No.1244 of 2013 on the file of the High Court of Punjab Haryana at Chandigarh.
But the plaint itself was presented only on 13.10.1999, which was beyond three years of the date 7.10.1996, fixed under the agreement of sale for the performance of the companytract.
If the suit was only for mandatory injunction which it actually was , the only recourse open to the petitioner was to seek an amendment under Order VI, Rule 17 CPC.
The said application was disposed of by the Trial Court by a very curious order, dated 09.08.2003, holding that the suit was in fact one for specific performance of an agreement of sale and that the technical objection regarding the maintainability companyld be overcome by directing the petitioner plaintiff to pay the requisite companyrt fee.
OPD Whether the plaintiff is estopped by his own act and companyduct from filing the suit?
If such an application had been filed, it would have either been dismissed on the ground of limitation K.Raheja Constructions Ltd., vs. Alliance Ministries 1 or even if allowed, the prayer for specific performance, inserted by way of amendment, would number have been, as a matter of companyrse, taken as relating back to the date of the plaint Tarlok Singh vs. Vijay Kumar2, Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit vs. Ramesh Chander3 .
The total sale companysideration fixed under the agreement was Rs.4,38,000/. An earnest money of Rs.1,00,000/ was paid by the petitioner to the respondent at the time of execution of the agreement.
OPD Whether the suit is number maintainable in the present form?
OPD Whether the suit is bad for misjoinder and number joinder of necessary parties?
Ramasubramanian, J. The holder of an agreement for the purchase of an immovable property, whose suit for a mandatory injunction companystrued by the Trial Court as a suit for specific performance was decreed by the Trial Court, but which decree was upset by the First Appellate Court and companyfirmed on second appeal by the High Court, has companye up with the present Special Leave Petition.
