MANJUL RAI Vs. SULOCHANA

JUDGEMENT

(1.) This miscellaneous appeal under Order 43 Rule 1 of CPC has been filed against the order dated 17.5.2018 passed by 11th Additional District Judge, Gwalior in Civil Suit No.510/2016 by which the application filed by the appellants under Order 39 Rule 1 and 2 of CPC has been rejected.

(2.) It is submitted by the counsel for the appellants that the appellants have filed a suit for declaration of title and permanent injunction on the basis of an agreement to sell dated 29.5.2010. However, the Court below has rejected the application under Order 39 Rule 1 and 2 of CPC on the ground that no right or title stands transferred to the intending purchaser on the basis of agreement to sell and since the suit has not been filed for specific performance of contract, therefore there is no prima facie case in favour of the appellants.

(3.) Challenging the order passed by the Court below, it is submitted by the counsel for the appellants that it is true that the appellants should have filed a suit for specific performance of contract but as a wrong legal advice was given to him, therefore, a suit for declaration of title and permanent injunction has been filed. It was fairly conceded by the counsel for the appellants that no right or title stands transferred to the intending purchaser by virtue of agreement to sell. However, it is submitted by the counsel for the appellants that the Trial Court should have granted a liberty to the appellants to amend the civil suit.