Krishnamurthy Gounder vs Venkatakrishnan and Others

Honourable Mr. Justice R.S. Ramanathan

The revision petitioner is the plaintiff in O.S.No.304 of 1996 on the file of the Principal District Munsif cum Judicial Magistrate, Chengam.

The revision petitioner filed the suit for specific performance of an agreement of sale and also for recovery of possession. The lower Court

passed a decree of specific performance by Judgement and Decree dated 29.4.2004. In the decree passed there is no mention about the relief of

recovery of possession and the decree only says that the plaintiff is entitled for specific performance of contract. Thereafter, the revision petitioner

filed Execution Petition for execution of the sale deed as the defendants failed to execute the sale deed, the sale deed was executed by the Court

on 3.1.2007 and registered as Document No.45 of 2007 on 5.1.2007. Thereafter, the revision petitioner filed E.A.No.118 of 2007 for delivery of

possession of property and that petition was dismissed and against the same this revision is filed.

It is submitted by the learned counsel for the revision petitioner that the Court below erred in dismissing the application for delivery of

possession on the ground that the trial Court declined to grant a decree for delivery of possession and in the absence of such decree for delivery of

possession, the application is not maintainable. According to the learned counsel for the revision petitioner that in the Judgement reported in Babu

Lal Vs. Hazari Lal Kishori Lal and Others, the Hon''ble Supreme Court considered the scope of Sections 21, 22 and 28 of the Specific Relief Act

and held that even in the absence of any prayer for recovery of possession, the Court has got power to order delivery of possession though the

sale deed was executed pursuant to the decree passed in the suit. He also relied upon the Judgement of this Court reported in S. Sampoornam and

A. Srinivasan Vs. P.V. Kuppuswamy and Others, wherein this Court considered the same question and after relying upon the Judgement reported

in Babu Lal Vs. Hazari Lal Kishori Lal and Others, and other Judgements held that the recovery of possession can be ordered when the suit for

specific performance is decreed. He therefore contended that the order of the Court below is liable to be set aside.

On the other hand, the learned counsel for the 1st respondent relied upon the Judgement reported in 2001 VII AD 513 (SC) and contended

that in the absence of any decree for possession the Court below has no power to order delivery of possession of the property and executing the

Court cannot go beyond the decree. He further submitted that having specifically prayed for the relief of delivery of possession and the decree is

silent about the relief of delivery of possession, it can be presumed that the Court has negatived the relief and therefore without amending the

prayer for delivery of possession, the revision petitioner is not entitled to the relief of recovery of possession. He further contended that even as per

Section 22 of the Specific Relief Act, the Court has no power to grant the relief of possession unless it has been specifically claimed and when the

plaintiff has not claimed any such relief in the plaint, the Court should permit the plaintiff to amend the plaint and thereafter grant the relief of

recovery of possession and without amending the prayer for recovery of possession, the plaintiff/ revision petitioner is not entitled to the relief

prayed for. He further submitted that in the Judgement of this Court reported in S. Sampoornam and A. Srinivasan Vs. P.V. Kuppuswamy and

Others, the Court was carried away by the findings of the Judgement in the lower Court wherein it was specifically stated that the suit was decreed

as prayed for. In that suit the recovery of possession was prayed for and while drafting the decree that relief was not included and considering the

same this Court has granted the relief of recovery of possession and therefore the above Judgement cannot be applied to the facts of this case. I

am unable to accept the contention of the learned counsel for the 1st respondent.

Admittedly, in the suit filed by the revision petitioner he prayed for specific performance of an agreement of sale and also for delivery of

possession. No doubt, the lower Court granted a decree for specific performance and the decree is silent about the recovery of possession. In

these circumstances, the observation of the Hon''ble Supreme Court made in the Judgement reported in Babu Lal Vs. Hazari Lal Kishori Lal and

Others, is relevant and is as follows:

Section 22 of the Specific Relief Act which enacts a rule of pleading provides 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 Civil P.C., to the contrary. Sub-

sec. (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.

The proviso to this sub-s. (2), however, says that where the plaintiff has not specifically claimed these reliefs in his plaint, in the initial stages of the

suit, the Court shall permit the plaintiff at any stage of the proceedings, to include one or more of the reliefs, 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 an appropriate case"" in Section 22(1) is very significant. The expression only indicates that it is not always incumbent on the

plaintiff to claim possession or partition or separate possession in a suit for specific performance of a contract for the transfer of the immovable

property. That has to be done where the circumstances demanding the relief for specific performance of the contract of 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, the relief of possession being inherent in the relief for specific performance of the

contract of sale. Besides, the proviso to sub-sec. (2) of Section 22 provides for amendment of the plaint on such terms as may be just for including

a claim for such relief ""at any stage of the proceedings"". 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 provisions of Section 55(1) of the T.P. 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.

The word ""proceeding"" has not been defined in the Act. That term is a very comprehensive term and generally speaking means a prescribed course

of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will

be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word ""proceeding"" in Section 22 includes

execution proceedings also.

Since neither a contract for sale nor a decree passed on that basis for specific performance of the contract gives any right or title to the decree-

holder and the right and the title passes to him only on the execution of the deed of sale either by the judgment-debtor himself or by the Court itself

in case he fails to execute the sale deed, it is idle to contend that a valuable right had accrued to the petitioner merely because a decree has been

passed for the specific performance of the contract. The limitation would start against the decree-holders only after they had obtained a sale in

respect of the disputed property. It is, therefore, difficult to accept that a valuable right had accrued to the judgement-debtor by lapse of time.

Section 22 has been enacted only for the purpose of avoiding multiplicity of proceedings which the law Courts always abhor.

Further, Section 28(3) clearly contemplates that if the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under

the decree, the Court may on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to Sub-cl.

(b) of sub-sec. (3) of Section 28 contemplates the delivery of possession or partition and separate possession of the property on the execution of

such conveyance or lease.

Therefore, it is seen from the above Judgement the Hon''ble Supreme Court has considered the provisions of Sections 21, 22 and 28 of the

Specific Relief Act and held that after obtaining the sale deed the right accrues to the purchaser to ask for possession and the Hon''ble Supreme

Court has considered the provisions of Section 55(1) of the T.P.Act in support of its conclusion.

In the Judgement of this Court reported in S. Sampoornam and A. Srinivasan Vs. P.V. Kuppuswamy and Others, also the same principles are

reiterated and it was held that even in the absence of any prayer for possession once a suit for specific performance is decreed the Court has got

every power to order delivery of possession. Further, according to me, the Court has got power to grant the relief of possession even in the

absence of any such prayer as per the proviso to Section 22(2) of the Specific Relief Act the Court shall at any stage of the proceedings allow the

plaintiff to amend the plaint to include the relief. In my opinion, a discretion is vested on the Court to allow the amendment and even in the absence

of any prayer and even in the absence of any application for amendment, the Court can grant the relief of recovery of possession once the suit is

decreed for specific performance. These aspects were not properly appreciated by the Court below and the Court below approached the

application in a pedantic manner and dismissed the application without appreciating the Judgements of the Hon''ble Supreme Court and of our High

Court.

Hence, the order of the Court below is set aside and the Civil Revision Petition is allowed. No costs. Consequently, the connected

Miscellaneous Petitions are closed.