Mrs. R. Ramani vs Mrs. Shanthi Damodaran

The Petitioner is Defendant in O.S. No. 2238 of 2006 on the file of the IV Asst. Judge, City Civil Court, Chennai. The Respondent has filed the

suit for permanent injunction against this Petitioner restraining her from alienating the suit property to third parties. Pending the trial of the suit, the

Petitioner filed an application under Order 14 Rule 2 and Section 151 CPC to try the maintainability of the suit as preliminary issue and to dispose

of the suit on the said issue.

In the affidavit, she has alleged that the suit property belongs to her, that she entered into an agreement of sale with the Respondent on

25.07.2005 to sell her property, that the said agreement is not a concluded contract and that she got the property by means of a sale dated

17.12.1997 executed by her father which has to be probated and since no letters of administration was obtained, the agreement of sale is

abandoned. The Respondent/Plaintiff agreed to receive the advance amount alone. Section 41, Specific Relief Act bars filing of the present suit.

The Plaintiff has to file the suit for specific performance and hence the preliminary issue is being raised to be tried. The Respondent retained all

original documents of title. This Petitioner is ready to return the advance amount of Rs. 10,00,000/-. The agreement is not enforceable in law.

Hence, the Court may please to try the maintainability of the suit as preliminary issue and dispose the suit itself.

In the counter filed by the Respondent, it is stated that on the date of agreement, the Petitioner handed over all the original title deeds and also

the registered will dated 17.12.1997 executed by her father for the purpose of obtaining probate from the High Court. The vendor has agreed to

get probate of the will from the High Court in the agreement. Unless the will is probated, the title will be conferred on the Petitioner. This

Respondent engaged a lawyer to get the will probated from the High court. The Petitioner signed vakalat after the learned Counsel for the

Respondent drafted necessary petitions for the letters of administration, obtained signatures of the Petitioner in the petition and also got the

signatures of attesting witnesses and filed the same into the court. This Respondent paid necessary court fee and all the formalities for the probate

OP was pursued by this Respondent. It was numbered as OP No. 788 of 2005. The Petitioner never turned up to give evidence. The matter was

adjourned time and again for the evidence of the Petitioner and the Master posted the OP before Judge for disposal for non-compliance.

In addition to lawyer''s letters, the Respondent personally approached the Petitioner to give evidence but in vain. The Petitioner was not inclined

to complete the sale transaction. Unless the will is probated, this Respondent cannot file the suit for specific performance of contract of sale and a

suit for bare injunction was filed restraining the Petitioner from alienating the property. This Respondent has also filed a petition under Order 2 Rule

2 of CPC seeking permission of the Court to file a suit for specific performance after the will is probated. The said petition is pending. When such

petition is filed, the Petitioner cannot file the present petition. The Respondent is always ready and willing to purchase the property after paying the

balance sale consideration. The petition has been filed with malafide intention after a lapse of nearly one year. Hence, the petition may be

dismissed.

After hearing both sides, the Court below has dismissed the application, observing that without the will being probated, the Respondent could

not file a suit for specific performance of contract and there is no wrong on her part in filing the suit for permanent injunction. This is the order

challenged before this Court in this revision.

The suit property belonged to the Petitioner by means of a will dated 08.01.1998 executed by her father late Vijayaraghavan. After his death on

17.08.2000, the Petitioner became the owner. She entered into an agreement of sale of the property with the Respondent on 25.07.2005 agreeing

to sell the same for Rs. 65,00,000/- within six months on receipt of Rs. 10,00,000/- as advance. The clause No. 3 and 4 of the sale agreement

would read thus

The purchaser and the vendor mutually agreed to complete the sale transaction within 6 months from the date of execution of this Sale

Agreement i.e. On or before 15.1.2006. Or immediately after obtain the probation order from Hon''ble High Court which ever is earlier. The

purchaser agreed to pay the balance sale consideration Rs. 55,00,000/- (Rupees Fifty Five Lakhs only) to the VENDOR within the stipulated

period as mentioned above or at the time of Registration.

The vendor herein agreed with the purchaser that she will probate the WILL testated by her father within 6 months from the date of this

agreement, After obtaining the probation order from the Hon''ble High Court the Vendor herein agreed to register the schedule property in favour

of the purchaser.

The above said recitals would clarify that it is incumbent upon the Petitioner to get the will probated within six months and to execute the sale

deed. It is admitted that the Respondent arranged to file the OP No. 788 of 2005 before the High Court and it is for the Petitioner to lead

necessary evidence and to file the required affidavit from the attestors. It is pleaded in the plaint that among the three attestors to the will, one

attestor Krishnamurthy is said to have died and hence the other two attestors Velayudan and Babu have filed required affidavits, that with ulterior

motive, the Petitioner refused to attend the Court and tender evidence which would only show that she was not inclined to complete the sale

transaction, that setting up a lame excuse in her reply notice that she is unable to get consent affidavits of the attesting witnesses, she is prolonging

the proceedings, that the Plaintiff reserves her right to file a suit for specific performance after the will is probated and she has filed a petition under

Order 2 Rule 2 of CPC reserving her right to file a suit for specific performance of contract after the will is probated and the said petition is

pending. Pertinent it is to note is that the filing of the affidavit by the attestors have not been specifically denied in the written statement. It appears

that the Respondent has taken possible steps to get the will probated but the Petitioner is not coming forward to tender her evidence before

Master.

It is contended by the Petitioner that since it is not possible to get Letters of Administration, the agreement of sale was given up and abandoned.

But there is no specific recital in this regard in the sale agreement. It is further contention of the Petitioner that without filing the suit for specific

performance of contract, filing of suit for permanent injunction is barred and the present suit is not maintainable. But the cause of action for filing the

suit would arise only after getting the probate order as regards the will and on the date of filing of the present suit and even now, such cause of

action has not arisen. The present suit was filed on 03.03.2006 and the written statement was filed in October 2006. The probate OP was filed in

OP No. 788 of 2005. From the Information Centre of the High Court, a computer print out has been obtained, which shows that the status of the

said OP ""disposed"" on 28.04.2010 (Dismissed as not pressed). It appears that the Petitioner being the Petitioner in the probate OP has not

pressed the petition.

The Petitioner is bound to get the probate order. Unless she gets the probate order, she cannot execute the sale deed. Hence, as adverted

supra, the suit for specific performance of contract could not be filed presently. The above said circumstances would show that due to the default

on the part of the Petitioner, the probate OP was dismissed.

The learned Counsel for the Petitioner would draw attention of this Court to a decision of this Court reported in Kandasamy V. v. C.

Kandasamy 2006 (1) CTC 197 in which it is held that a case may be disposed of on issue of law on ly and it can be tried as a preliminary issue.

In S.G. Badrinath Vs. V. Jagannathan and Another, it is observed as follows-

Where the Court came to the conclusion that there is a pure question of law to be decided as a preliminary issue, the order, refusing to decide the

preliminary issue on the mere ground that the Court did not favour to dispose of the suits on preliminary points is not justified and is liable to be

interfered with under appropriate provisions of law.

In Balasubramaniam, K.S. v. S. Munuswamy 2002 (2) CTC 417, this Court has observed that when an equally efficacious remedy for filing

for suit for specific performance of contract in case of breach of application in an agreement of sale u/s 41(h) of the Specific Relief Act, the suit for

permanent injunction is not maintainable. The same view has been echoed in the decision reported in Satish Bahadur Vs. Hans Raj and Others, .

The learned Counsel for the Petitioner placed reliance upon a decision of the Supreme Court for the said preposition which is in The Municipal

Corporation of Delhi Vs. Shri Suresh Chandra Jaipuria and Another, where in Their Lordships have observed as follows

Further, Section 41(h) of Specific Relief Act which lays down that an injunction, which is a discretionary equitable relief cannot be granted when an

equally efficacious relief is obtainable in any other usual mode or proceedings except in cases of breach of trust was also relevant on this point.

Thus the remedy u/s 169 of the Delhi Municipal Corporation Act 1957 was available to the Plaintiff. This consideration had a bearing upon the

question whether a prima facie case existed for the grant of an interim injunction.

But the facts in this case are distinguishable. At the cost of repetition, it is stated that when the cause of action for filing the suit for specific

performance of contract has not arisen, it is impossible for the Respondent to file a suit for specific performance of contract. In the considered view

of this Court, there is no wrong in filing the present suit. An equal efficacious remedy as provided in Section 41(h) of the Act would arise only after

the cause of action for such suit arises.

In these circumstances, I am of the considered view that there is no necessity to frame a preliminary issue in this case and question of framing

such issue has not arisen in the attending circumstances and I do not find any infirmity either legally or factually in the order challenged before this

Court which deserves to be confirmed and it is accordingly confirmed. The revision is devoid of merits.

In fine, the Civil Revision Petition is dismissed with costs. Consequently, connected Miscellaneous Petition is closed.