JAGDISH CHANDER SHARMA Vs. NARESH CHANDER

JUDGEMENT

(1.) The facts of the case are that on 18.1.1980 the Petitioner namely Shri Jagdish Chander Sharma had entered into an Agreement to Sell with Shri Naresh Chander. A suit for Specific Performance was filed two years later on 20.1.1982. On 22.3.1982 the Sub-Judge First Class, Delhi restrained Shri Naresh Chander from executing the Sale Deed in respect of the subject plot in favour of any other person. This suit for Specific Performance was eventually decreed on 23.9.1983. The Judgment Debtor namely Shri Naresh Chander filed an Appeal against the Decree in January, 1984. On 24.4.1984 the execution of the decree was stayed by this Court on the undertaking of the Judgment Debtor that he would not transfer, alienate or create any charge or construction on the said land. It appears that despite the undertaking the land in question was alienated. In the contempt proceedings the stay of the execution was vacated. The Sale Deed was executed by the Reader of the Court on 13.10.1998, the Decree Holder having deposited the balance sale consideration of Rs.14,000/- in the Treasury. On execution proceedings being initiated, Respondents No.2 and 3 in these proceedings namely Ashok Nahata Family Trust and A.A. & A. Agro Limited had filed objections on various grounds. The Executing Court, however, came to the conclusion that since no prayer for grant of possession had been made in the suit for specific performance, this relief could not be granted by the Executing Court. This Order dated 11.10.1996 has been impugned in this Civil Revision.

(2.) Mr.Agarwala, learned counsel for the Objectors/Respondents No.2 & 3, has strenuously contended that this Petition ought not to be entertained especially in view of the Decree Holder's application filed in these proceedings for the amendment of the plaint. He has also contended that no revisable error has been committed by the Executing Court. So far as the application for amendment is concerned, reliance has been placed on M/s Ex-Servicemen Enterprises (P) Limited Vs. Sumey Singh, AIR 1976 DELHI 56. In essence it has been held that since the application for amendment has been filed in the Executing Court, this came within the ambit of the expression "at any stage of the proceedings". It is contended that in Revision proceedings there would be no embargo to allowing an application for amendment of pleadings. Reliance has also been placed on Babu Lal Vs. M/s Hazari Lal Kishori Lal and others, AIR 1982 SC 818. Mr. Agarwala, however, has been quick to state that neither of these cases dealt with an application for amendment of pleadings at the stage of the adjudication of a Revision Petition.

(3.) In my opinion it is not necessary to delve into this question of whether the amendment can or cannot be entertained in the present Revision proceedings. This is for the reason that in Babu Lai's Case (supra), the Hon'ble Supreme Court has observed that "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." In this very judgment the Court has visualised instances where in a suit for Specific Performance the relief for possession ought to have been pleaded. This would, roughly stated, be those cases where the person in possession is not the same person against whom the prayer of specific performance of the contract is directed. The reason is obvious. Even for the suit for specific performance is decreed, the rights of the third party in occupation of the premises should not be affected without giving him a reasonable opportunity of being heard. It is conceivable that the person in possession sets up a defence independent of that of the party to the 'Agreement to Sell'.