HAZARI LAL KISHORI LAL Vs. BABU LAL

JUDGEMENT

(1.) It must have been very inauspicious day when M/s Hazari Lal Kishori Lal (hereinafter referred to as decree-holder entered into an agreement on 30th July. 1967 with Om Prakash and three others (herein after referred to as Vendors) for-sale of certain plots situated behind their shop for a sum of Rs. 15. 500/ -. The sale deed was agreed to be executed within 5 days. Before the stipulated period expired the vendors who had received Rs. 1500/-as earnest money lost no opportunity in taking advantage of neighbourly business competitiveness between decree-holder and Babu Lal (hereinafter referred to as Judgment debtor) and sold the land to him on 7th August, 1967 for Rs. 20,000/ -. Armed with ths sale- deed the judgment-debtor removed the building material etc. of the decree-holder which was put by them with permission of the vendor and started raising own constructions. This forced the decree- holder to file a suit for specific performance on 26-1-1968 which although dismissed by the trial Court was decreed in appeal on 21st May, 1975. The plea of judgment-debtor that its sale was in pursuance of prior agreement dated 8-7-1967 was repelled and he was directed to execute the sale deed in favour of decree-holder. In Second appeal the decree for specific performance was maintained by this Court but its form was changed to fall in line with the Supreme Court's decision in Durga Prasad v. Deep Chand (A. I. R. 1954 S. C. 75 ). The vendors were directed to execute the sale-deed and the judg ment-debtor was directed to join along with them. Having spent eight years in obtaining formal expression of adjudication which conclusively determined the rights of the parties the decree-holder had to enter second phase of litigation as the judgment- debtor was not inclined to hand over possession or remove the constructions raised by him although he had given an undertaking in proceedings for injunction filed in the suit by the decree holder as far back as 25-3-1968. The stiff resistance offered by judgment-debtor may be due to genuine feeling that he was the wronged party or the enjoyment of litigating and remaining in possession. In his objection under Section 47 Civil Procedure Code he took up all possible pleas to defeat the execution. It was claimed that decree was inexecutable as the decree-holder having not sought relief of possession as required in Section 22 (2) of Specific Relief Act in the suit for specific performance nor any relief having been given, the application was liable to be dismissed. It was also claimed that Urban Land Ceiling Act having come into force it was incumbent on decree holder to obtain permission as required under Section 26 and 27, of the Act, and in absence of any permission of application for execution was not maintainable. Further it was alleged that the vendors were not impleaded as parties which was done only after this Court had directed the vendors to execute the sale deed in second appeal. As the vendors were not parties in the execution application it was not maintainable and it was not open to executing Court to implead a person who was not originally impleaded in the application. The executing Court on 25-10-1976 accepted the objection in part and directed the execution of sale-deed only. For possession the decree holder was directed to file a separate suit. The appellate Court also did not find any merit and maintained the order of the execution Court. Against this order two appeals have been filed in this Court, one by judgment-debtor and the othej by decree holder. A revision has also been filed by the judgment debtor against order dated 15-3-1978 by which the Civil Judge directed the judgment-debtors to execute a sale-deed in favour of decree-holder without obtaining permission of Urban Land Ceiling authorities under Sections 26 and 27 of the Act. Both these appeals and revision are being dispossessed of by this order. It is convenient to dispose of the last point first namely, whether the application for execution was defective for want of notice to competent authority under Sections 26 and 27 Urban Land Ceiling Act. It was urged that provision was mandatory and it applied to all transfers either through Court or otherwise. Reliance was placed in Mohd. Ishaq v. Abdul (1979 A. W. C. 104), a deci sion under Consolidation of Holdings Act where it was held that the require ment in Section 5 of that Act of obtaining permission from Settlement Officer consolidation before transferring the land applied to private as well as Court's transfer. The controversy however stands concluded so far Urban Land Ceiling Act is concerned by a Division Bench decision in Pratap Narain Agrawal v. Ram Narain (1981 A. L. J. 591 ). It was held; "as transfer arising out of Court decree or Court orders are not in the nature of voluntary transfer, the provisions contained in Sections 26 and 27 would not apply. " The two Courts below therefore did not commit any error in rejecting the contention of judgment- debtor. Similarly the argument that non-impleadment of vendors in execution application was fatal is devoid of any merit. The suit for specific performance was resisted by the judgment-debtor alone. It was he who was in possession and had given the undertaking on 25-3-1968 to remove the constructions if he lost the suit. The execution, therefore, had to be taken out against him. Impleadment or non-impleadment of vendors was of no consequence. Sub sequently after modification of the decree in suit for specific performance by this Court the vendors were impleaded. Order having been passed by this Court for execution of a sale deed by vendors and joining of judgment-debtors in it the decree-holder was justified in moving the application before the executing Court for impleading them and the Court below did not permit any error in allowing the application. In addition to these two questions which had been decided by the two Courts below against judgment- debtor the learned counsel urged that the contract between decree-holder and the vendor stood frustrated by subsequent forcible possession by the judgment-debtor and raising of constructions over it. According to learned counsel the contract between decree-holder and vendor could not be performed now and it was not open to executing Court to go behind the decree passed in the suit. In other words the decree could be only for possession over land but as admittedly constructions have been raised, contract stood frustrated. The doctrine of frustration has been explained by the Hon'ble Supreme Court in Satya Raton v. Mangi Ram (A. I. R. 1954 S. C. 75 ). "the essential idea of frustration is based on performance of contract. . . . . . . . . . . . . . . . . . The changed circumstances make the performance of the contract impossible and the parties are absolved from the further observance as they did not promise to perform any impossibility. " Learned counsel maintained that this principle has been extended by Supreme Court in Piyare Lal v. Hori Lal (5), where land agreed to be sold was allotted in consolidation proceedings to some one else. The doctrine of frustration is well settled. It, however, does not appear to have any application to the facts of the case. The identity or the land is not in dispute. The only flaw in the case is the absence of the prayer for possession in the suit for specific performance. The contract is not impossible to be performed. The con structions were raised on specific undertaking that it shall be removed. The judgment-debtor cannot be allowed to take advantage of his own wrong. This disposes of the appeal of judgment-debtor. The principal question, however, on which the two Courts below have refused to allow prayer for possession is whether relief for possession can be granted even though the decree-holder did not seek any relief in the suit for specific performance. Although, the plaint was read and an attempt was made to demonstrate that relief for possession was claimed but there appears to be no hesitation in concluding that from the averments in the plaint no such plea is made out. The fate of the application therefore, has to be decided on the footing that no relief for possession was sought by the decree holder in the suit for specific performance. It may not be out of place to mention that after the second appeal was decided an effort was made by the decree-holder for amending the plaint which was naturally not accepted as the Court did not find any error in its order which could be rectified under Section 152 of the Code of Civil Procedure. For deciding this question it is necessary to extract Section 22 of the Specific Relief Act; "section 22 (1 ).-Notwithstanding anything to the contrary contained in the Civil Procedure Code, 1908, any person suing for specific perfor mance off a contract for the transfer of immovable property, may in appropriate case, asks for- (a) possession, or partition and separate possession of the property, in addition to such performance; or (b) any other relief, to which he may be entitled, including the re fund of any earnest money or deposit paid or made to him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed. Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including the claimes for such relief. (3) The power of the Court to grant relief under clause (b) of sub section (1) shall be without prejudice to its powers to award compens ation under Section 21. " On the Section as it originally stood there was a lot of controversy in different High Courts and therefore, Law Commission in its IX report dated 2-7-1956 recommended the amendment and addition of Sub-section (2) to Section 22. The expression, 'an appropriate case' in sub-section (1) has been subject matter of controversy. According to Counsel for decree-holder, it is only enabling provision and failure to ask for relief of possession in suit for specific performance did not debar the decree holder from claiming possession in execution. That it is enabling provision cannot be doubted. It avoids multiplicity of litigation. But it is equally certain that it creates absolute bar where possession could be claimed or was necessary to be claimed but it was not claimed. It does not leave any discretion in the Court. It does not operate only on the decree-holder but also on the power of the Court to grant relief. This is a statutory restriction which cannot be ignored. The expres sion cannot be stretched loosely so as to empower a decree-holder not to seek relief of possession and yet claim that in a suit for specific performance it is inherent that possession should also be delivered to him. This could have been on law as it stood earlier but it is not open to a decree-holder to claim it now in view of sub-section (2) of Section 22 of the Specific Relief Act. Even the Law Commission in its report observed, "we think it would be simpler to make a statutory provision enabling the plaintiff to ask for posses sion. . . . . . . . . and empowering the Court to provide in the decree itself. . . . . . . . . the defendant should execute the deed and put the plaintiff in possession. " A similar question arose in execution. Second Appeal No. 1174 of 1975 Bishambhar and others v. Ram Chand and others (supra) decided on 27-7-1976. It was held by this Court: "that I do not see that it is possible for the Court to pass such an order for delivery of possession etc. under clause (b) unless such relief was claimed and the original decree was passed granting their relief under Section 22 of the Specific Relief Act. " Reliance was placed by the learned counsel for decree-holder on Gyasa v Smt Risalo A. I. R. 1977 All. 156, it was held; "in a case where exclusive possession is with the contracting party a decree for specific performance of the contract of sale simplicitor with out specifically providing for delivery of possession may give complete relief to the decree-holder. In order to satisfy the decree against him he is not only to execute the sale deed but also to put the property in possession of the decree-holder. " This has been the sheet-anchor of the decree holder. It was urged that the discretion was of the decree- holder to seek relief of possession or partition etc wherever he deemed necessary. But this could not be construed as creating' an absolute bar on the rights of decree-holder who could in the circumstances of a case merely ask for execution of a sale deed and thereby get complete satisfaction of the decree. It is true that in this case the decree-holder was not in possession and with help of expression 'in an appropriate case' it was held that decree holder could have got possession even though he had not claimed it against vendor. But in a case where third party is in possession it was observed," a mere relief for specific performance of the contract may not entitle the plaintiff to obtain possession as against third party. " Faced with this difficulty it was urged for decree-holder that Babu Lal was in fact not a stranger or a third party, but the judgment debtor against whom the application for execution could be successfully prosecuted Tttis argument cannot bs accepted. The contract for sale was between decree-holder and vendor. The provisions of Specific Relief Act applied between those two They do not touch a third party, a stranger, a trespasser or a person who interfered in possession with the connivance or agreement by the vendor except of course where a person claim through vendor. As a matter of fact, it was to curb the tendency of vendors to frustrate the agreement entered into for sale that the lagislature intervened and amended Section 22 as it stands now What was held to be implied in a decree for specific performance was made explicit by providing that a plaintiff could seek not only specific performance of an agreement but relief for possession as well. This however was not an exercise in futility. It was to be availed by the plaintiff. In this case in paragraph 7 of the plaint it was alleged that plaintiff was put in possession in pursuance of the agreement of sale but the purchaser subsequently disposses-sed him forcibly removed his building material and put his own. These allegations leave no room for doubt that plaintiff was dispossessed. He could not therefore, claim that it was not an appropriate case in which he was not required to claim relief for possession. As a part of the same argument learned counsel placed reliance on Section 28 (3) of Specific Relief Act and Section 55 (1) (e) (f) of the Transfer of Property Act. He urged that in case Babu Lal had no vestige of title how could this Court direct him to execute sale deed. Reliance was placed on Dwarka Prasad v. Hari Kant A. I. R. 1973 S. C. 655. AS pointed out above Babu Lal was directed to join the sale-deed not because he was a part to an agreement but to avoid any future litigation and to bring the decree in accordance with law laid down by Hon'ble Supreme Court in Durga Prasad's case (supra ). By that order Babu Lal did not become a part to the agreement nor it can ba said that he was a part in the sense in which it has been held by Brother K. N. Seth, J, in the decision reported in Gyasctn case (supra ). While interpreting Section 22 (1) (b) it was held by brother P. N. Goel, J in Pyare Lal v. Natthi Lal 1979 A. L. J. 106. "then sub-section (2) of this Section provides that relief under clauses (1) and (2) shall not be granted by this Court unless it has been specifi cally claimed in sub-section (1) indicating that the return of earnest money cannot be permitted unless it was specifically claimed in the plaint. " The decision is no doubt on sub-section (b) of Section 22 (1) yet the interpreta tion put on Section 22 (2) applies uniformally to clauses (a) and (b ). This disposes of the legal controversy raised by the learned counsel for the Decree-holder. As regards the Civil Revision it appears the decree holder applied for execution of sale-deed which was rejected by the competent authority as no permission was obtained as required under Sections 26 and 27 of the Urban Ceiling on Land Act. Against this order the decree holder filed an appeal. In the meanwhile the decree-holder appears to have come to know of a Government order issued by the Central Covernraent directing that these provisions shall not be attracted in case of enforcement of decree or order of the Court. This government order was issued in exercise of power under Section 47 of the Act. The Government order provided; "it is clarified that the provision contained in Sections 26 and 27 of the Act will apply in the case of voluntary transfers only. As transfer arising out of Court decree, a Court order is not in the nature of volun tary transfer, the provisions contained in Sections 26 and 27 will not apply to them. " On this the application was moved before the Civil Judge for directing the sub-registrar to execute the sale-deed without obtaining permission from a competent authority. This application was allowed on 15-3-1978. The correctness of the order is challenged as Government order issued by the Central Government could not control the statutory requirement of Section 26 but the more potent argument was based on Satyadhan v. Smt. Deorajun Devi and another A. I. R. 1960 S. C. 94 atid it was urged that competent authority having rejected the same application earlier the decree holder was debarred on principle of resjudicata from approaching the Civil Judge afresh. In Pratap Narain v. Ram Narain 1981 A. L. J. 691, it has been held "that Sections 26 and 27 do not apply to transfers executed through Courts". The Bench based its decision on the government order issued by the Central Government. There appears to be no good reason to differ from this view. As regards resjudicata the plea does not appear to have been raised in the Court below. Before application of this principle the necessary facts have to be found. In absence of raising this plea, the judgment debtor cannot be permitted to raise it in this Court. Two applications have also been filed for amendment-One is execution application and other in the suit for specific performance. Support was sought for such an amendment from Mahendra Nath Biswas v. Radhey Shyam Bishwas A. I. R. 1953 Cal. 767 and B. Seshaish v. B. Veerbhadary A. I. R- 1972 A. P. 134. Reliance was also placed on Section 152 and Order VI rule 17 of the Code of Civil Procedure and the decision of Full Bench in Ganesh v. Sri Ram Lallaji Maharaj A. I. R. 1973 Alld. 116. The deci sion in Ganesh's case (supra) is on general principle of amendment. The other two cases were where amendment was allowed in the execution applica tion itself. The allowing of amendment application in execution shall be of no consequence. It would not cure the defect of not seeking relief for posses sion in the plaint itself. As regards the second application filed on 31-7-1981 for amending the plaint it was urged that the amendment sought is in the suit for specific performance which came to an end after the decision of second appeal by this Court. If the Court became functus officio and did not allow the amendment then it cannot be allowed now in execution proceedings. The learned counsel maintained that amendment at this stage would mean setting at naught all the proceedings which had been taken and would necessitate an opportunity to the judgment-debtor to file a written statement and contest the case from a new angle. Reliance was placed on Rukmini Devi v Pawan Kumar A. I. R. 1979 Pat. 88. The decision, however, does not help the judgment debtor It is true that the Bench did not agree with a single Judge decision of Delhi High Court in Ex Service Enterprise v. Bhumey Singh A. I. R. 1956 Del. 53, and held that the words, 'at any stage' in this proviso to sub-section (2) of Section 2 did not include execution proceedings but the basic reason to dismiss the application was absence of any decree against the subsequent purchaser. In this casa subsequent purchaser was not only party, but a decree was passed against him declaring the sale deed executed in his favour as invalid. But this is not the end. It has been seen above that decree holder has been running from pillar to post to reap the benefit of decree passed on agree ment entered as far back as 1967. In 1968 immediately after filing of the suit the decree holder made an attempt to injunct the judgment debtor from rais ins any constructions. This was frustrated by a clever step that in case the suit was lost the judgment-debtor shall remove the constructions. As the decree-holder had admitted that he was not in possession and the judgment-debtor gave an undertaking the Court did not find any prima facie case and consequently dismissed the injunction application. But the fact remains that even in 1968 the judgment-debtor undertook to remove the constructions from the land in dispute. Now after 13 years he is turning round and taking advantage of his own wrong. It would be inequitable and perpetrating in justice if the judgment debtor is permitted to take advantage of the under taking given by him which it appears even at that time he knew that it was rot to be performed. In 1976 decree holder even moved an application under Order XXXIX rule 2a of the Civil Procedure Code and under Section 2 (b) and 12 of the Contempt of Court's Act, 1971. This application was moved as the judgment debtor was not complying with the undertaking given by him in proceedings for injunction. The Court, however, felt helpless as the decree- holder having not sought relief for possession it could not be said that any breach was committed by the judgment debtor. Appeal against this order also failed in 1979. Another attempt was made in 1977 by filing a direct contempt application in this Court which was dismissed on 30-3-decree-holder therefore, has left no stone unturned to reap the beneht of the Wee but all'his efforts have been thwarted by one technicality of not claim ing possession in the suit for specific performance. I Bhumey Singh's case (suora) the Delhi High Court held that the expression at any stage should be construed liberally so as to do justice between parties, From facts narrated above it is apparent that there is no equity in favour of judgment debtor. Courts forum should not be permitted to be abused. The primary objection is to do justice. It should not be permitted to be defeated on technicalities. The law or pleadings is procedural. It should be interpreted to advance justice. As observed earlier the decree-holder was precluded from seeking relief of possession due to undertaking given by judgment-debtor, therefore, he should be held bound by it. He should be directed to remove constructions and 'restore the property in the same condition as it was' to use the language of the affidavit filed in reply to injunction application. In the peculiar circumstances of the case the decree-holder shall be entitled to possession. In this view of the matter it is not necessary to go to the length the Delhi High Court went in Bhumeh Singh's case and decide whether expression at any stage' in sub-section (2) of Section 22 extends upto execution. On facts as it stood on the date of filing of suit for specific performance the relief for injunction was proper. By his own conduct the judgment debtor not only dispossessed the decree holder but further prevented him from seeking relief of possession. For the reasons stated above therefore Judgment debtor should not only be held bound by his undertaking but the decree also cannot be held to be inexecutable. In the result appeal No. 1001 of 1977 filed on behalf of decree holder succeeds and is allowed. The orders of the two Courts below is modified. The decree holder shall be entitled to possession also. Appeal No. 1720 of 1977 of Judgment debtor and Civil Revision No. 1447 of 1978 fail and are dismissed. The decree holder shall be entitled to costs. .