B. Ratansingh vs P.G. Sekar

R.S. Ramanathan, J.—The Defendants in C.S. No. 695 of 2011 filed the above Application to revoke the leave granted to the Respondent/Plaintiff in Application No. 3113 of 2011. The Respondent/Plaintiff filed C.S. No. 695 of 2011 for the following reliefs:

"(a) Directing the Defendants to execute Sale Deed in respect of the Schedule mentioned properties, after receiving the balance sale consideration of Rs. 1,17,02,636/- from the Plaintiff, failing which, this Court, on behalf of the Defendants, shall receive the balance sale consideration of Rs. 1,17,02,636/- and execute the Sale Deed in respect of Suit Schedule properties (or in the alternative) directing the Defendants to return the sale advance amount of Rs. 5,00,000/- to the Plaintiff;

(b) To grant a Decree of permanent injunction restraining the Defendants, their agents, servants or anyone acting in trust for them, from alienating, encumbering the Suit Schedule properties to any third parties; and

(c) Costs of the Suit."

The Suit properties are situate out side the Original jurisdiction of the Madras High Court and the parties entered into an Agreement of Sale, dated 17.7.2008 at Korukupet, Chennai, which is situate within the jurisdiction of this Court and therefore, the Suit was filed for the enforcement of the Agreement of Sale, dated 17.7.2008 and as the properties are situate out side the jurisdiction of this Court, leave was sought for in Application No. 3113 of 2011 and leave was granted on 8.7.2011 and to revoke the said leave, the present Application is filed.

It is submitted by Mr. M. Ramesh, the learned Counsel appearing for the Applicants that as per the Agreement, dated 17.7.2008, which is sought to be enforced in that Suit, the Applicants are bound to deliver vacant possession at the time of execution of Sale Deed. Therefore, the Respondent/Plaintiff is entitled to seek delivery of possession of the property, after getting the Sale Deed executed, as per the Decree to be passed in that Suit and therefore, the Suit is virtually a Suit for Specific Performance and for recovery of possession and therefore, it has to be construed as a ''Suit for land'', as per Clause 12 of the Letters Patent and as per Section 16 of Civil Procedure Code, when a Suit is one for land, the Suit can be filed within the jurisdiction of the Court, where the property is situate and admittedly, the properties are not situate within the Original jurisdiction of this Court and therefore, this Court has no jurisdiction to entertain the matter and therefore, the leave already granted is liable to be revoked.

He further submitted that even though, the relief for possession was not sought for, in a Suit for Specific Performance the relief of possession is inherent and having regard to the provisions of Sections 22 & 28 of the Specific Relief Act, even in the absence of any prayer for recovery of possession, the Court has got power to direct the vendor to deliver possession of the property and on that ground also, the Suit has to be construed as a ''Suit for land'' and therefore, it is not maintainable before this Court, as the properties are not situate within the Original jurisdiction of this Court.

He relied upon the following Judgments in support of his contention:

Ram B. Thakur (P) Ltd. v. Velliangiri & 3 others, 1989 (2) LW 529;

A. Velliangiri (deceased) and 3 others Vs. M/s. Ram Bahadur Takur (P)Ltd., Lahariasari, Durbanga Dist. Bihar State and 3 others, ; and

M. Banupriya Vs. M/s. Nuziveedu Seeds Limited, No. 905, Kanchunjanga Building, Barakhamba Road, Connaught Place, New Delhi-110 001 and M/s. Zillion Estates Pvt. Ltd., 6/12, Brodipet, Guntur, Andhra Pradesh,

and contended that having regard to the law laid down by the Hon''ble Supreme Court in the Judgment reported in Moolji Jaitha & Co. v. The Khandesh Spinning and Weaving Mills Co. Ltd., AIR 1950 (37) Federal Court 83; and Babu Lal Vs. Hazari Lal Kishori Lal and Others, , it cannot be contended that the Suit is not a Suit for land and therefore, the leave has to be revoked.

On the other hand, Mr. S. Sivashanmugam, the learned Counsel appearing for the Respondent/Plaintiff submitted that a Suit for Specific Performance simpliciter is not a Suit for land even though the Decree directs the Defendant to execute a Sale Deed and a Suit for Specific Performance is only an action in personam and it is not an action in rem. In this case, the prayer is only to execute the Sale Deed and no relief for possession is sought for and therefore, it will not be construed as a ''Suit for land'' as per Clause 12 of Letters Patent and when a Suit is not for land, it can be maintained in the Original jurisdiction of this Court, even though the properties are situate outside the jurisdiction of this Court. He also submitted that the Application is filed at a belated stage, after the trial has commenced and the Defendant has also acquiesced in the proceedings and waived his right to raise objection regarding the jurisdiction of this Court and also relied upon the following Judgments:

P.T. Ummer Koya, Hon. Secretary, All India Chess Federation Vs. Tamil Nadu Chess Association and Others, ; and

Nandhini Promoters, rep. by Proprietrix, E. Thenmozhi, Chennai v. A. Sadiq Ali, son of Abbas Ali and another, 2008 (5) MLJ 342.

The issues to be considered in this Application is are:

(i) Whether the Suit for Specific Performance of an Agreement of Sale, seeking for a prayer directing the vendor to execute the Sale Deed without any prayer for possession can be construed as a ''Suit for land''.

(ii) Whether such Application to revoke the lease can be maintained after the commencement of trial?

Clause 12 of the Letter Patent reads 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 or 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 again, 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 used for does not exceed one hundred rupees."

I had an occasion to deal with such an issue in Application No. 5106 of 2013 in C.S. No. 695 of 2010 in the matter of B. Ratansingh and another v. P.G. Sekar, Managing Director of Ela Foundation (P) Limited, Chennai, wherein I elaborately considered all the Judgments on that point and the decision is as follows:

P.M.A. Velliappa Chettiar and Another Vs. Saha Govinda Doss and Others,

(2) AIR 1950 83 (Federal Court)

(3) 971569-->

(4) Babu Lal Vs. Hazari Lal Kishori Lal and Others, , are the Judgments of the Hon''ble Supreme Court and the Full Bench of our High Court.

In the Judgment reported in P.M.A. Velliappa Chettiar and Another Vs. Saha Govinda Doss and Others, of the Letters Patent was interpreted and the properties, which were the subject matter of that Suit situate out side the jurisdiction of the Madras High Court and the Suit was filed for Specific Performance of contract, directing the Defendants 1 & 2 to convey the properties to the Plaintiff and the Hon''ble Full Bench of this Court held that a Suit for Specific Performance is a Suit ''in personam'' and a Suit for land is an action ''in rem'''' and Clause 12 of the Letters Patent does not bar the jurisdiction as to Suits in personam and therefore, it is not a Suit for land and the Court has got jurisdiction to entertain such Suit.

This Judgment was considered in AIR 1950 83 (Federal Court), by five eminent Judges and they also considered the phrase ''Suit for land'' appearing in Clause 12 of the Letters Patent and each learned Judges rendered separate Judgment dealing with the phrase ''Suit for land'' and the Judgment reported in AIR (37) 1950 FC 83 has been approved in subsequent Judgments.

Before going into the law laid down by the Hon''ble Judges in that case, it is better to have a look at the facts of that case to have a better understanding of the law laid down in that case.

The facts of that case have been succinctly brought out in the Judgment reported in Southern Petrochemical Industries Corporation Ltd. Vs. Durga Iron Works and Others, , as follows:

"The Defendants, who were a firm of merchants carrying on business in Bombay, were the secretaries and treasures of the Plaintiff-Company and, as such, were in sole management of the spinning and weaving mill owned by the Company at Jalgaon outside the local limits of its jurisdiction. After terminating the agency of the Defendants, the Company brought a Suit for various reliefs founded, in general, on alleged wrongful action by the Defendants in breach of their fiduciary obligation in the course of their employment. In addition to the prayer for a general account of the Defendants'' Management of the Company''s affairs and business during the whole period of the agency and certain other connected prayers, the Company asked for two reliefs concerning certain lands at Jalgaon specified in the Plaint which were alleged to have been acquired by the Defendants on behalf of the Company and out of the moneys or other property belonging to the Company but in the name of the Defendants and that the lands stood in the name of the Defendants only as benamidars or trustees of the Plaintiff-Company. The reliefs were thus described:

(a) That it may be declared that the said lands belong to and are the property of the Plaintiff-Company and that the Defendants have no beneficial interest therein.

(b) That the Defendants may be ordered to execute all such acts as may be necessary for transferring the said lands to the name of the Plaintiff-Company."

The law laid down by the learned Judges in the Judgment reported in AIR 1950 83 (Federal Court), has also been stated clearly in that Judgment and it is as follows:

"Per Kama, C.J.--In order to see whether a Suit is covered by the expression ''Suit for land'' in Clause 12 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 involved the consideration of the question of title to land indirectly.

Per Fazl Ali, J. (Obiter).--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.

Per Patanjali Sastri, J.--The words ''Suits for land or other immovable property'' in Clause 12 besides obviously covering claim for recovery of possession or control of land, are apt to connote also Suits which primarily and substantially seek an adjudication upon title to immovable property or a determination of any right or interest therein.

Per Mahajan, J.--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 fall within the four comers of this expression.

Per B.K. Mukherjea, J.--The words ''Suit for land'' mean a Suit for establishing title to land or any interest in the same or for possession or control thereof; and the decree sought for must be intended proprio vigore to be enforceable against and binding on the land itself."

In addition to the aforesaid observation in that Judgment, the Hon''ble Judges also dealt with the procedure to be followed, while considering a Suit for the purpose of appreciating the scope of the Suit. His Lordship Kania, C.J. held that a Suit as a whole has to be taken into consideration to find out 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.

His Lordship further held in Para 24 that the nature of the Suit and its purpose have to be determined by reading the Plaint as a whole and it is not proper to dissect the prayers and consider whether the Court has jurisdiction on the limited points.

His Lordship in Para 25 further held that the inclusion or absence of a prayer is not decisive of the true nature of the Suit, nor is the order in which the prayers are arrayed in the Plaint. The substance or object of the Suit has to be gathered from the averments made in the Plaint and on which the reliefs asked in the prayers were based. Further, His Lordship having regard to the facts of that case held that the Suit was not a Suit for land and therefore, Clause 12 of the Letters Patent will not apply and the Suit was maintainable.

His Lordship Fazl Ali did not go into the question whether the Suit was one for land or not, but dismissed the Appeal on the ground that the Appeal cannot be entertained for want of a proper Certificate under Order 45, Rule 3 of Civil Procedure Code, 1908. However, in Para 47, the learned Judge discussed the phrase ''Suit for land'' and held that the Suit for land covers three classes of Suits, namely (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.

The learned Judge also observed in Para 49 that it may be difficult to find out a comprehensive definition for the expression "Suit for land" so as to cover all possible cases, but there is overwhelming Authority for the view that a Suit for determination of title to land is prima facie a Suit for land.

The learned Judge also observed in Para 50 that amendment of Clause 12 of the Letters Patent on the same line, as Section 5 of the Civil Procedure Code, 1859 would curtail a good deal of fruitless litigation and these amendments, if made, will put an end to all controversy not only about the meaning of the expression "Suit for land" but also as to whether the High Courts concerned have any equitable jurisdiction to act in personam to enforce reliefs in respect of lands and Suits relating to which are expressly excluded from their jurisdiction.

His Lordship Justice Patanjali Sastri, as he then was, having regard to the facts of that case, held that the Suit was not a Suit for land and the Plaintiff sought for reliefs, which are action in personam and he also agreed with the view expressed by Fazl Ali, J. regarding the desirability of amendment of Clause 12 of Letters Patent so as to make the position clear.

The learned Justice Mahajan held that the Suit was only a Suit for land, having regard to the pleadings and prayers and the High Court has no original jurisdiction to entertain the Suit. Nevertheless, the learned Judge also opined in Para 102 as follows:

"Finally, I would like to say a word about Suits for Specific Performance regarding which conflicting decisions have been pronounced by the High Courts in India. In my opinion, if the Suit is for Specific Performance and a Decree fro 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. It is curious that in some cases in Calcutta a distinction has been drawn between a vendor''s Suit for Specific Performance and a purchaser''s Suit for Specific Performance. The nature of the Suit is both contingencies is the same, though in one case the vendor is prepared to offer a Deed while in the other case the Court has to direct that a deed be executed but the nature of the Suit does not change by that circumstance. The Suit is not for land because it is a Suit for specific performance of a contract, and does not involve any declaration as to title about land. The only question in issue in such a case is whether the contract was made and if so, are there any reasons why it should not be specifically enforced. No controversy as to title to land is directly raised when the Court is not called upon to adjudicate on title. Cases therefore which have held that a Suit for Specific Performance simpliciter is a Suit for land must be held to have been wrongly decided. I am in respectful Agreement with the decision of the Madras High Court in P.M.A. Velliappa Chettiar and Another Vs. Saha Govinda Doss and Others,

Justice B.K. Mukherjea also held that the Suit was one ''Suit for land'' and allowed the Appeal. However, having regard to the majority Judgment rendered by Kania, C.J., Fazl Ali, J. Patanjali Sastri, J. the Appeal was dismissed. Therefore, in my respectful opinion, the majority Judges in AIR 1950 83 (Federal Court), dismissed the Appeal on the ground that the Suit was not a Suit for land, having regard to the facts of that case and also laid down, what is meant by a Suit for land.

The learned Justice Mahajan though opined in Para 102 that a Suit for Specific Performance simpliciter cannot be brought under the definition ''the Suit for land'', having regard to the facts of the case and the decision rendered on those facts, in my respectful opinion, the opinion expressed by Justice Mahajan in Para 102 that the Suit for Specific Performance simpliciter will not be a Suit for land, can be construed only as Obiter, so far as that case is concerned. However, I am bound by the observation of the Hon''ble Judge Mahajan, even though the observations made in Para 102 were to be construed as Obiter for that case. At the same time, we should not forget the fact that at that time, Specific Relief Act, which was in force, did not have the provision similar to Sections 22 & 28 of the Specific Relief Act, 1963. Therefore, the Hon''ble Judges were of the opinion that a Suit for enforcing the Agreement of Sale is only an action in personam, as the parties are seeking the aid of the Court to enforce the Contract for Sale against the Defendant to perform his part of contract and the parties are entitled to file a fresh Suit for possession, after getting Sale Deed executed, as the cause of action for filing the Suit for possession accrues only after getting the Sale Deed executed, pursuant to the Decree for Specific Performance and therefore, a Suit for Specific Performance simpliciter cannot be construed as a ''Suit for land''. But things have changed after the Specific Relief Act, 1963 and the scope of Specific Performance in relation to Sections 22 & 28 of the Specific Relief Act, 1963 were discussed in detail, in that reported Judgment Babu Lal Vs. Hazari Lal Kishori Lal and Others, .

Though, in the aforesaid Judgment Babu Lal Vs. Hazari Lal Kishori Lal and Others, of the Letters Patent was not considered, the law laid down in that Judgment, in my view, would make it clear that in a Suit for Specific Performance, even though possession was not sought for, when there is a Clause in the Agreement directing the vendor to put the vendee in possession of the property, after executing the Sale Deed, the relief of possession is inherent and therefore, it has to be construed as a ''Suit for land''. In that Suit, the Respondents 6 to 9 entered into an Agreement with Respondents 1 to 5 for sale of certain plots of land and later, the vendors viz., the Respondents 6 to 9 executed the Sale Deed in favour of the Petitioner-Babu Lal in defiance of the earlier Agreement with the Respondents 1 to 5. Therefore, the Respondents 1 to 5 filed a Suit for Specific Performance of the Contract for Sale. The Respondents 1 to 5 did not ask for possession and the Suit was dismissed by the Trial Court and in Appeal, the Judgment of the Trial Court was reversed and the Suit was decreed and in the Second Appeal, the High Court confirmed the Judgment of the First Appellate Court and directed the Petitioner-Babu Lal along with the Respondents 6 to 9 to execute the Sale Deed on the basis of the Judgment reported in Lala Durga Prasad and Another Vs. Lala Deep Chand and Others, .

As stated supra, no prayer for possession was sought for. Therefore, the Decree-holder applied for execution of the Decree and prayed for possession and the defence was taken that the Decree was inexecutable, as the Decree-holders did not claim the relief for possession and there was no Decree for possession and therefore, the Application for execution for delivery of possession was liable to be dismissed as per Section 22(2) of the Specific Relief Act. Objections were taken, with which we are not concerned in this case. The Execution Court allowed the objection of the Judgment-Debtor in part and directed the execution of the Sale Deed, pursuant to the Decree, but refused to grant the relief of possession with the observation that the remedy of the Decree-holders for possession was by means of a separate Suit and not in the Execution proceedings. The Order of the Executing Court was confirmed by the First Appellate Court and against that two Appeals were filed, one by Judgment-Debtor and another by Decree-holder and the Appeal filed by the Judgment-Debtor and the Revision filed by the Judgment Debtor were dismissed and the Appeal filed by the Decree-holders was allowed and the Judgment-Debtor was directed to hand over the possession. Aggrieved by the same, the Judgment-Debtor filed the above Appeal before the Hon''ble Supreme Court.

It was contended in that case that the High Court should not have granted the relief of possession, in the absence of any relief for possession sought for and having regard to sub-section (2) of Section 22 of the Specific Relief Act, 1963 having failed to seek for possession in a Suit, the Decree- holder cannot claim the same relief, at a subsequent stage and in any case, without an amendment of the Plaint, the relief of possession could not be given.

The learned Judges relied upon various Judgments as referred to in Para 7 & 8 of that Judgment, considered the scope of Section 22 of the Specific Relief Act, 1963, which reads as follows:

"11. Section 22, enacts a rule of pleading. The Legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the Plaintiff may claim a Decree for possession in a Suit for Specific Performance, even though strictly speaking, the right to possession accrues only when Suit for Specific Performance is decreed. The Legislature has now made a statutory provision enabling the Plaintiff to ask for possession in the Suit for Specific Performance and empowering the Court to provide in the Decree itself that upon payment by the Plaintiff of the consideration money within the given time, the Defendant should execute the deed and put the Plaintiff in possession.

The Section enacts that a person in a Suit for Specific Performance of a contract for the transfer of immovable property, may ask for appropriate reliefs, namely, he may ask for possession, or for partition, or for separate possession including the relief for Specific Performance. These reliefs he can claim, notwithstanding anything contained in the Code of Civil Procedure, 1908, to the contrary, sub-section (2) of this section, however, specifically provides that these reliefs cannot be granted by the Court, unless they have been expressly claimed by the Plaintiff in the Suit. Sub-section (2) of the Section recognised in clear terms the well-established rule of procedure that the Court should not entertain a claim of the Plaintiff unless it has been specifically pleaded by the Plaintiff and proved by him to be legally entitled to. The Proviso to this sub-section (2), however, says that where the Plaintiff has not specifically claimed these reliefs in his Plaint, in the initial stage of the Suit, the Court shall permit the Plaintiff at any stage of the proceedings, to include one or more of the reliefs, mentioned above by means of an amendment of the Plaint on such terms as it may deem proper. The only purpose of this newly enacted provision is to avoid multiplicity of Suits and that the Plaintiff may get appropriate relief without being hampered by procedural complications.

The expression in sub-section (1) of Section 22, ''in an appropriate case'' is very significant, The Plaintiff may ask for the relief of possession or partition or separate possession ''in an appropriate case''. As pointed out earlier, in view of Order 2, Rule 2 of the Code of Civil Procedure, some doubt was entertained whether the relief for Specific Performance and partition and possession could be combined in one Suit; one view being that the cause of action for claiming relief for partition and possession could accrue to the Plaintiff only after he acquired title to the property on the execution of a Sale Deed in his favour and since the relief for Specific Performance of the Contract for Sale was not based on the same cause of action as the relief for partition and possession, the two reliefs could not be combined in one Suit. Similarly, as a case may be visualized where after the contract between the Plaintiff and the Defendant the property passed in possession of a third person. A mere relief for Specific Performance of the Contract of Sale may not entitle the Plaintiff to obtain possession as against the party in actual possession of the property. As against him, a Decree for possession must be specifically claimed or such a person is not bound by the contract sought to be enforced. In a case where exclusive possession is with the contracting party, a Decree for Specific Performance of the Contract of Sale simpliciter without specifically providing for delivery of possession, may give complete relief to the Decree-holder. In order to satisfy the Decree against him completely, he is bound not only to execute the Sale Deed but also to put the property in possession of the Decree-holder. This is in consonance with the provision of Section 55(1) of the Transfer of Property Act which provides that the seller is bound to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature admits.

There may be circumstances in which a relief for possession cannot be effectively granted to the Decree-holder without specifically claiming relief for possession, viz., where the property agreed to be conveyed is jointly held by the Defendant with other persons. In such a case the Plaintiff in order to obtain complete and effective relief must claim partition of the property and possession over the share of the Defendant. It is in such cases that a relief for possession must be specifically pleaded."

The learned Judges also interpreted the phrase ''in an appropriate case'', appearing in Section 22 of the Specific Relief Act and held that the relief of possession is inherent in the relief for Specific Performance of the Contract for Sale and where the circumstances demand the relief for Specific Performance of the contract of the sale embraced within its ambit not only the execution of the Sale Deed, but also possession over the property conveyed under the Sale Deed. It may not always be necessary for the Plaintiff to specifically claim possession over the property as the relief of possession being inherent in the relief for Specific Performance of the Contract of Sale.

The learned Judges also interpreted Section 28 of the Specific Relief Act, 1963 and held that sub-clause (b) of sub-section (3) of Section 28 of the Specific Relief Act, contemplates the delivery of possession or partition and separate possession of the property on the execution of such conveyance or lease and as per sub-section (4) of Section 28, the filing of a separate Suit for any relief, which may be claimed under this Section is barred.

The learned Judges also relied upon the Judgment reported in Hungerford Investment Trust Ltd. (in voluntary Liquidation) Vs. Haridas Mundhra and Others, , wherein Section 28(1) of the Specific Relief Act, 1963 was interpreted as follows:

"The Specific Relief Act, 1963, is not an exhaustive enactment and under the law relating to specific relief a Court which passes a Decree for Specific Performance retains control over the Decree even after the Decree had been passed. Therefore, the Court, in the present case, retained control over the matter despite the Decree and it was open to the Court, when it was alleged that the party moved against had positively refused to complete the contract, to entertain the Application and order rescission of the Decree if the allegation was proved."

The reasoning given by this Court with regard to the applicability of sub-section (1) of Section 28, will equally apply to the applicability of sub-section (3) of section.

The learned Judges further observed as follows:

"Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the Decree-holder starts in getting possession in pursuance of the Decree obtained by him. The Judgment-debtor tries to thwart the execution by all possible objections. In the circumstances narrated above, we do not find any fault with the Order passed by the High Court."

and dismissed the Appeal thereby confirmed the Order of the High Court granting possession, even though there was no direction for possession in the Decree for Specific Performance.

Further, it is pertinent to mention here that in the aforesaid Judgment reported in Babu Lal Vs. Hazari Lal Kishori Lal and Others, , the learned Judges also considered the scope of Section 55 of the Transfer of Property Act, to arrive at a conclusion that in a Suit for Specific Performance, on execution of Sale Deed as per the contract, the vendor is bound to deliver possession and therefore, there is no need to separately ask the relief for possession, as the relief for possession is inherent in a Suit relating to Specific Performance of Contract for Sale.

In the Judgment reported in 971569--> , which is relied upon by the learned Counsel appearing for the Respondent/Plaintiff, Clause 12 of the Letters Patent was considered by the Hon''ble Supreme Court. The Hon''ble Supreme Court though held that in a Suit for Specific Performance of Contract for Sale of immovable property containing stipulation that on execution of a 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 view of the mandate of sub-section (2) of Section 22 of the Specific Relief Act, no relief under clauses (a) & (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed and therefore, in a Suit where the prayer is for Specific Performance of Agreement of Sale, without a prayer for delivery of possession, the Suit cannot be treated as ''Suit for land'' and the Suit is simpliciter for Specific Performance of a Contract for Sale and it is a Suit for enforcement of terms of contract and the title to the land as such is not the subject matter of the Suit.

The learned Judges considered the Judgment reported in AIR 1950 83 (Federal Court), and held that in that Judgment that law has been laid down and held in Para 15 that a ''Suit for land'' is a Suit, in which the relief claimed relates to title or to delivery of possession of land or immovable property and 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 and whether 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'' and having regard to the prayer in that Suit, held that the Suit was filed for Specific Performance of Agreement of Sale and the relief of possession was not sought for and therefore, it cannot be construed as a ''Suit for land''. In Para 16, it is held as follows:

"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 a part of the Decree of Specific Performance of contract."

It is further held that as per Section 22(2) of the Specific Relief Act, 1963, no relief under clauses (a) & (b) of sub-section (1) of Section 22, shall be granted, unless it has been specifically claimed and therefore, without asking for the relief of possession, the same cannot be granted without amending Plaint.

It is pertinent to mention here that the Judgment reported in Babu Lal Vs. Hazari Lal Kishori Lal and Others, , was not brought to the notice of the Hon''ble Judges and the learned Judges, while deciding the case reported in 971569--> , also did not consider the scope of Section 28.

According to me, having regard to the law laid down by the Hon''ble Supreme Court in AIR 1950 83 (Federal Court), wherein it was held that a ''Suit for land'' would mean a Suit in which the reliefs claimed, if granted, would directly affect title to or possession of the land and also the object of the Suit was something different, but involves the consideration of the question of title to land indirectly and the Suits for land would cover the claim for recovery of possession or control of land, which was also approved by the Hon''ble Supreme Court in 971569--> , that any Suit or Suits wherein determination of any right or interest in land is claimed, the same can be considered as a Suit for land, even though possession is not specifically sought for as possession is inherent in a Suit for Specific Performance.

As stated supra, the law as it stood at the time of delivering the Judgment reported in AIR 1950 83 (Federal Court), there were no provisions like Sections 22 & 28 of the Specific Relief Act, 1963 in the earlier Specific Relief Act and therefore, it was held that a Suit for Specific Performance simpliciter is only an action in personam and the parties are only seeking for a right to enforce the terms of the contract and only after getting the title to the property by getting the Sale Deed executed by the Defendant, the Plaintiff gets the right to sue for possession and secondly, the Suit was not barred and under Order 2, Rule 2, as there was no provision at that time similar to Sections 22 & 28 of the Specific Relief Act, 1963 and in that context, it was held that a Suit for Specific Performance simpliciter is not a Suit for land.

Further, the difference between the old Specific Relief Act and the new Specific Relief Act has been succinctly brought out in the Judgment reported in Babu Lal Vs. Hazari Lal Kishori Lal and Others, , wherein the Hon''ble Supreme Court held that the relief of possession is inherent in a relief for Specific Performance and even in the absence of any prayer, the court has got power to grant the relief of possession and as per Section 22, at any stage, the Court can amend the relief and grant possession and having regard to the Section 28(I)(3), the Court has got power to grant the relief of possession and unfortunately, the law laid down by the Hon''ble Supreme Court in the Judgment reported in Babu Lal Vs. Hazari Lal Kishori Lal and Others, , was not brought to the Notice of the Hon''ble Judges, while deciding the case reported in 971569--> .

In this case, as per the Agreement of Sale, the vendor is liable to deliver vacant possession at the time of registration of the Sale Deed and therefore, as held by the Hon''ble Supreme Court in the Judgment reported in Babu Lal Vs. Hazari Lal Kishori Lal and Others, , when the Agreement is enforced by directing the vendor to execute the Sale Deed, he is also bound to act as per the terms of the Agreement of Sale and therefore, he is bound to deliver possession of the property and when the delivery of possession is inherent in a Suit for Specific Performance and when determination of any right or interest therein is to be considered by the Court, it become a Suit for land.

Further, as per the Judgment reported in AIR 1950 83 (Federal Court), when the Plaintiff is entitled to the relief of possession as per the Agreement of Sale, it amounts to an interest of the property and therefore, considering the provisions of Section 55 of the Transfer of Property Act and Sections 22 & 28 of the Specific Relief Act, even in the absence of a prayer for delivery of possession, having regard to the terms in the contract, the vendor is bound to deliver possession at the time of execution of the Sale Deed and hence, the relief of possession is inherent in a Suit for Specific Performance of such contract and having regard to the law laid down in the Judgment reported in Babu Lal Vs. Hazari Lal Kishori Lal and Others, , I am of the view that the Suit has to be construed as a ''Suit for land'' within the meaning of Clause 12 of Letters Patent and as the properties are situate outside the jurisdiction of this Court, this Court has no jurisdiction to entertain the Suit and therefore, the leave granted in Application No. 3113 of 2013 is liable to be revoked and it is hereby revoked.

The learned Counsel appearing for the Respondent/Plaintiff submitted that the present Application is belated one and already trial has started and the Applicant filed a Statement and Counter and participated in the trial and PW1 was examined in chief and at this age, this Application is filed and therefore, having regard to the Judgment reported in the case of P.T. Ummer Koya, Hon. Secretary, All India Chess Federation Vs. Tamil Nadu Chess Association and Others, , the Application to revoke leave granted at this stage cannot be granted. No doubt, the Hon''ble Supreme Court held in that Judgment that when the Defendant acquiesced with the jurisdiction of the Court by filing Counter Affidavit and Affidavit in the Injunction Petition to vacate injunction, the revocation of Leave Application cannot be entertain therein.

I am unable to accept the contention of the learned Counsel appearing for the Respondent. According to me, the facts of that case reported in P.T. Ummer Koya, Hon. Secretary, All India Chess Federation Vs. Tamil Nadu Chess Association and Others, , are entirely different from the fact of this case and having regard to the Judgment reported in the matter of Harshad Chiman Lal Modi Vs. D.L.F. Universal Ltd. and Another, , the said objection cannot be accepted. In that Judgment, the Hon''ble Supreme Court dealt with the objections in respect of Territorial and Pecuniary jurisdiction and also objections on the ground that the Court has no jurisdiction over the subject matter of the Suit. The Hon''ble Supreme Court held so far the Territorial and Pecuniary jurisdictions are considered, objection to such jurisdiction has to be taken at the earliest possible opportunity and if not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. However, the jurisdiction as to subject matter is totally distinct and stands on a different footing and where a Court has no jurisdiction over the subject matter of the Suit by reason of any limitation imposed by statute, it cannot take up the cause or matter, as any order passed by such Court having no jurisdiction is a nullity.

The Hon''ble Supreme Court in the Judgment reported in The Bahrein Petroleum Co. Ltd. Vs. P.J. Pappu and Another, ; and in the case of Kiran Singh and Others Vs. Chaman Paswan and Others, , held as follows:

In Halsbury''s Laws of England, (4th Edn.), Reissue, Vol. 10; para 317; it is stated;

Consent and waiver: Where, by reason of any limitation imposed by statute, charter or commission, a Court is without jurisdiction to entertain any particular claim or matter, neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the Court, nor can consent give a Court jurisdiction if a condition which goes to the jurisdiction has not been performed or fulfilled. Where the Court has jurisdiction over the particular subject matter of the claim or the particular parties and the only objection is whether, in the circumstances of the case, the Court ought to exercise jurisdiction, the parties may agree to give jurisdiction in their particular case; or a Defendant by entering an appearance without protest, or by taking steps in the proceedings, may waive his right to object to the Court taking cognizance of the proceedings. No appearance or answer, however, can give jurisdiction to a limited Court, nor can a private individual impose on a judge the jurisdiction or duty to adjudicate on a matter. A statute limiting the jurisdiction of a Court may contain provisions enabling the parties to extend the jurisdiction by consent."

In Bahrein Petroleum Co., this Court also held that neither consent nor waiver nor acquiescence can confer jurisdiction upon a Court, otherwise incompetent to try the Suit. It is well-settled and needs no Authority that ''where a Court takes upon itself to exercise a jurisdiction it does not possess, its decision amounts to nothing.'' A Decree passed by a Court having no jurisdiction is non-est and its validity can be set up whenever it is sought to be enforced as a foundation for a right, even at the stage of execution or in collateral proceedings. A Decree passed by a Court without jurisdiction is a coram non judice.

In Kiran Singh and Others Vs. Chaman Paswan and Others, , 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)

As the dispute is with respect to subject matter of the Suit and the contention of the Applicant is that this Court has no jurisdiction over the subject matter of the Suit, as the property is situate outside the jurisdiction of this Court, the objection can be taken, at any point of time, as any order passed by this Court, without jurisdiction is a nullity.

In this connection, it is pertinent to refer the Judgment reported in the case of T. Arivandandam Vs. T.V. Satyapal and Another, , that what was called for a meaningful not formal reading of the Plaint and any illusion created by clever drafting of the Plaint should be buried then and there.

In the Judgment reported in the case of Official Trustee, West Bengal and Others Vs. Sachindra Nath Chatterjee and Another, , relying upon the Judgment reported in the case of Hirday Nath Roy v. Ramachandra Barna Sarma, AIR 1921 Cal. 34 (FB) : ILR (48) Cal 138 (FB), the Hon''ble Full Bench of this Court held as follows:

"Before a Court can be held to have jurisdiction to decide a particular matter, it must not only have jurisdiction to try the Suit brought but must also have the Authority to pass the Orders sought for. It is not sufficient that it has some jurisdiction in relation to the subject matter of the Suit. Its jurisdiction must include the power to hear and decide the questions at issue, the Authority to hear and decide the particular controversy that has arisen between the parties."

Therefore, it has been held that the nature of the Suit and its purpose have to be determined by reading of the Plaint as a whole and inclusion or absence of a prayer is not decisive for the determination of the Suit and the substance or object of the Suit can be gathered from the averments made in the Plaint and on which the reliefs asked in the prayers are based and by clever drafting, a Suit cannot be brought before the Court, which has no jurisdiction. Therefore, by praying only for the relief of Specific Performance simpliciter, it cannot be contended that it is not a Suit for land, as no relief for possession was sought for, without considering the main object of the Suit to enforce the Contract for Sale, which contains a stipulation that possession would be delivered on execution of the Sale Deed and as per Sections 22 & 28 of the Specific Relief Act, 1963, possession could be obtained later in execution with or without amending the relief prayed in the Plaint. Hence, the Suit of such nature has to be construed as a Suit for land. In the result, the Application is allowed and the leave granted in Application No. 3113 of 2010 is revoked. No costs.