Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
CASE NO.:
Appeal (civil) 1566 of 1991
PETITIONER:
ADCON ELECTRONICS PVT. LTD.
Vs.
RESPONDENT:
DAULAT AND ANR.
DATE OF JUDGMENT: 12/09/2001
BENCH:
Syed Shah Mohammed Quadri & S. N. Phukan
JUDGMENT:
Syed Shah Mohammed Quadri, J.
This appeal, by special leave, raises an interesting question :
whether a suit simpliciter for specific performance of contract for sale
of immovable property is a "suit for land" within clause 12 of Letters
Patent of the High Court of Judicature at Bombay?
The appellant is the defendant and the respondents are the
plaintiffs in the suit out of which this appeal arises. In this judgment
the parties will be referred to as they are arrayed in the trial court.
The facts lie in a narrow campus and are not in dispute. By an
agreement of July 12, 1986 land together building known as "Vithal
Bhavan", bearing No.6/5 (Block No.24), South Tukoganj, Indore,
M.P., (for short, ’the suit property’) was agreed to be sold by the
defendant to the plaintiffs for a consideration of Rs.53,75,000/-.
Subsequently the parties executed a memorandum also in regard to the
suit property on August 1, 1987. Disputes arose between the parties
with regard to the performance of the said agreement. The plaintiffs
filed Suit No.1088 of 1989 in the High Court of judicature at Bombay
(for short, ’the High Court’) against the defendant praying, inter alia,
for a declaration that agreement dated July 12, 1986 and
memorandum dated August 1, 1987 are subsisting and binding on the
defendant and for a decree of specific performance of the said
agreement and memorandum. The suit was filed with the leave of the
court under clause 12 of the Letters Patent of the High Court of
Judicature of Presidency of Bombay (referred to in this judgment as
’the Letters Patent’). A learned single Judge of the High Court
granted leave on April 4, 1989. The defendant took out chamber
summons No.862 of 1989 in the suit for revocation of the leave
granted to the plaintiffs. The learned single Judge dismissed the
chamber summons on January 22, 1990. That order was assailed by
the defendant in L.P.A. No.697 of 1990. A Division Bench of the
High Court dismissed the L.P.A. on July 30, 1990. It is that order of
the Division Bench which is under challenge in this appeal.
Mr.A.K.Chitale, the learned senior counsel appearing for the
defendant (appellant), has argued that in the agreement there is
specific stipulation that the defendant will hand over possession of the
suit property on the execution of the sale deed, therefore, the suit for
specific performance of the agreement would be a "suit for land"
within the meaning of clause 12 of the Letters Patent. In any event,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
submitted the learned counsel, acquisition of title to any immovable
property would also fall within the meaning of "suit for land" and,
therefore, the High Court erred in not revoking the leave.
Ms.Manik Karanjawala, the learned counsel who was appearing
for the pla*
*ef Act, 1963 directs
that relief of possession in addition to specific performance of the
agreement should not be granted by court unless it has been
specifically claimed therefore a suit for specific performance
simpliciter in the absence of a explicit prayer for delivery of
possession of the suit property, can not be treated as a "suit for land".
It will be appropriate to refer to clause 12 of Letters Patent
which reads thus :
"12. Original Jurisdiction as to suits.
And We do further ordain that the said High Court
of Judicature at Bombay, in the 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 Court at Bombay, in
which the debt or damage, or value of property sued for
does not exceed one hundred rupees."
Leaving the words which are not relevant for our purpose the
said clause will read as follows : "And We further ordain that the said
High Court of Judicature at Bombay, in the 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........."
Thus, it is clear that under clause 12 of the Letters Patent, the
High Court in exercise of its ordinary original jurisdiction will have
power to receive, try and determine : (1) suits for land or other
immovable property if such property is situated within the local limits
of original jurisdiction of the High Court; or (2) all other cases (a) if
the cause of action has arisen wholly within the local limits of the
ordinary original jurisdiction of the High Court; (b) if prior leave of
the Court has been obtained and the cause of action has arisen in part
within the local limits of the ordinary original jurisdiction of the High
Court; or (c) if the defendant dwells or carries on business or
personally works for gain within such limits.
The learned single Judge while dismissing the chamber
summons took the view that so far as the High Court of Bombay was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
concerned the law was well settled that suits for specific performance,
even though they might relate to the land, were not suits for land. On
appeal the order of the learned single Judge was confirmed by the
Division Bench opining that the suit for specific performance of an
agreement for sale was not a "suit for land".
The question then arises as to what is meant by "suit for land".
This expression has been interpreted by different High Courts as well
as the Federal Court.
In His Highness Shrimant Maharaj Yashvantrav Holkar of
Indore Vs. Dada Bhai Cursetji Ashburner [1890 (14) I.L.R. Bombay
353] a Division Bench of the Bombay High Court held that a suit for
specific performance would not fall within the meaning of that
expression. There the suit was filed for specific performance of an
agreement to mortgage certain immovable property. The agreement
was made in Bombay between the parties on January 8, 1883. The
Divisional Court held, "it had jurisdiction" and granted decree. On
appeal a Division Bench referred to an earlier judgment of that court
in Yenkoba Balset Kasar Vs. Rambhaji (9 Bombay H.C.Rep.13)
which laid down that suit for land was a suit which asked for delivery
of land to the plaintiff. The High Court also referred to the view of
the Calcutta High Court in The Delhi and London Bank Vs. Wordie
[I.L.R., 1 Calcutta 249 at p.263] construing that expression to mean,
"substantially for land" -- that is for the purpose of acquiring title to,
or control over, land." It also noticed the view of a learned single
Judge of the Calcutta High Court in Sreenath Roy Vs. Cally Doss
Ghose [I.L.R. (5) Calcutta 82] holding that the court had no
jurisdiction to make a decree in a suit for specific performance. The
Division Bench of the Bombay High Court held that the suit was
within the jurisdiction whether regarded as a suit for specific
performance or to enforce equitable mortgage by deposit of title deeds
as a court of equity in England could entertain it.
In M/s.Moolji Jaitha and Co. Vs. The Khandesh Spinning and
Weaving Mills Co. Ltd. [A.I.R. (37) 1950 Federal Court 83], there is
divergence of opinion among the learned Judges of five-Judge Bench
of the Federal Court in regard to the import of the expression "suit for
land". Chief Justice Kania opined, "Taking the suit as a whole, one
has to consider whether it is for the purpose of obtaining a direction
for possession or a decision on title to land, or the object of the suit is
something different but involves the consideration of the question of
title to land indirectly." Justice Fazl Ali observed, "If I had really felt
that I was called upon to decide it, I would have agreed with the line
of cases in which it has been held that, broadly speaking, the
expression "suit for land" covers the following three classes of suits :
(1) suits for the determination of title to land; (2) suits for possession
of land; and (3) other suits in which the reliefs claimed, if granted,
would directly affect title to or possession of land." Justice Patanjali
Sastri took the view, "The words in question, besides obviously
covering claims for recovery of possession or control of land, are apt
to connote also suit which primarily and substantially seek an
adjudication upon title to immovable property or a determination of
any right or interest therein." Justice Mahajan observed, "If an
attempt is made to find a comprehensive definition of the phrase, it
will eventually be discovered that it has created further complications.
I therefore content myself by saying that where the nature of the suit
is such that in substance it involves a controversy about land or
immovable property and the Court is called upon to decide conflicting
claims to such property and a decree or order is prayed for which will
bring about a change in the title to it, that suit can be said to be in
respect of land or immovable property; but where incidentally in a
suit, the main purpose of which or the primary object of which is quite
different, some relief has to be given about land, the title to it not
being in dispute in the real sense of the term, then such a suit cannot
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
fall within the four corners of this expression." He added, "In my
opinion, if the suit is for specific performance and a decree for
possession of the land sold is claimed, such a suit would certainly be a
"suit for land"; but if the suit is simpliciter for specific performance,
i.e., for the enforcement of the contract of sale and for execution of a
conveyance, in that event there can be no good ground for holding
that such a suit is a suit for determination of title to land or that the
decree in it would operate on the land." In that view he expressed his
agreement with the decision of the Full Bench of the Madras High
Court in Velliappa Chettiar Vs. Govinda Doss [AIR (16) 1929
Madras 721 F.B.]. Justice Mukherjea perceived, "It seems to me
fairly clear that the expression ’suit for land’ occurring in clause 12,
Letters Patent, means a suit which is instituted with the object of
establishing claims regarding title to the property or possession of it.
Whether or not possession is claimed, if title to any immovable
property is to be directly affected by the result of the decision, the suit
would be a suit for land."
In Debendra Nath Chowdhury Vs. Southern Bank Ltd. [AIR
1960 Calcutta 626] a Division Bench of the Calcutta High Court took
the view that the suit for specific performance of the contract to
execute and register a lease with alternative claims for damages is not
a ’suit for land’ within the meaning of clause 12 of the Letters Patent.
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).
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,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
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.
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) thereof. 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 no 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.
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".
We cannot also accept the contention of Mr.Chitale that the suit
is for acquisition of title to the land and is a "suit for land". In its true
sense a suit simpliciter for specific performance of contract for sale of
land is a suit for enforcement of terms of contract. The title to the
land as such is not the subject-matter of the suit.
In this view of the matter, we do not find any illegality in the
order of the Division Bench of the Bombay High Court under
challenge. The appeal is dismissed but in the circumstances of the
case without costs.
Before parting with the case we record our appreciation for the
assistance rendered by Mr.A.S.Bhasme, the learned amicus curiae.
.................................................J.
(Syed Shah Mohammed Quadri)
.................................................J.
(S. N. Phukan)
September 12, 2001.
1
13