KAMAL KAUL Vs. PRADEEP KUMAR & ANR.

JUDGEMENT

(1.) THE challenge by means of this Regular First Appeal under Section 96 CPC is to the impugned judgment of the trial Court dated 02.08.2010. By the impugned judgment, the trial Court has dismissed the suit for specific performance by holding that once there is a clause in the Agreement for payment of double the amount of the earnest money, then, specific performance cannot be granted. The second ground was that the subject property was a lease hold property and, therefore, contract with respect to the same cannot be specifically performed. The suit has been dismissed without trial.

(2.) THE impugned judgment is clearly illegal and bound to be set aside inasmuch as Section 23 of the Specific Relief Act, 1963 specifically provides that even if a contract provides payment of compensation/liquidated damages, the same is not a bar to the suit for specific performance. Section 23 of the Specific Relief Act clearly provides that the Court has to see various attending circumstances in order to decide whether specific performance ought to be granted or damages ought to be granted. This aspect can only be therefore decided at the stage of final arguments in the suit after trial is complete. The impugned judgment, however, dismissed the suit at the stage of pleadings without allowing the parties to lead evidence.

(3.) I have had an occasion to deal with this aspect in a recent judgment of this Court in Col. A.B. Singh (Through L.Rs) Vs. Shri Chunnilal Sawhney & Others RFA No.96/2002 decided on 5th October, 2011, in which I have held that in case the defendant/seller does not obtain the necessary permission, then, in execution proceedings, the Court will appoint a Local Commissioner under Order XXI Rule 32 CPC to obtain the necessary permission for sale of the property.