MALKI RAM Vs. BANDHU

JUDGEMENT

(1.) THIS is a revision application directed against the order of the Sub -judge, Ramban dated 30 -8 -69. The present petitioner brought a suit for pecific performance against the defendants for an area of land measuring 34 kanals 18 marlas, under various survey numbers situate in Moza Dralata Tehsil Ramban. During the pendency of the suit,the defendants presented an application (no such application exists on the record but there are objections of the plaintiff dated 23 -6 -69 to the application of the defendant for amendment on the file) for amendment of the written statement to include an alternative plea to the effect that if a decree for specific performance is granted to the plaintiff, it would be subject to the right of prior purchase in favour of Jamutoo defdt 12 The learned Sub -judge relying on an authority reported as AIR 1956 Bhopal 41 allowed this amendment by means of his order dated 30 -8 -1969. Against this order of the learned judge, the plaintiffs have preferred this revision petition.

(2.) I have heard the learned counsel for the parties. The learned counsel for the plaintiff has relied on this very authority and said it is on all forms with the facts of the present case. The authority lays down that: - "The relief for specific performance is a discretionary one and can be refused in special case, though of course, the discretion will have to be exercised on judicial principles and not arbitrarily. There if the plaintiffs suit for specific performance of the contract was decreed, the purchaser of that property would be able to dispossess him by claiming pre -emption over the property and would get the property for the same value as would be paid by the plaintiff. It would lead to further litigation without any benefit to the plaintiff. His suit would therefore be liable to dismissal." I am afraid this authority does not cover the facts of this case. In that case Abdul Shakoor defendant had entered into an agreement for sale with one Misri Lal to execute a sale deed for the Khander Land. Later on Abdul Shakoor sold the land to Babulal. Misri Lal brought a suit for specific performance of the contract and impleaded Babu Lal also as a defendant in the case. The defendants contested the suit and ultimatsly the learned Judge gave the finding recorded above. Here in this case the sale deed has not yet been executed in favour of anybody. In my opinion the order of the trial judge cannot be sustained and I shall give my reasons for the same and they are : - (i) Cause of action to file a suit for the exercise of right of prior purchase accrues only after the completion a sale. Before that no person has a right to bring such a suit: (ii) In a suit for specific performance it is not necessary that a decree for specific performance may follow. As held in the Bhopal authority and as otherwise this is the settled law that a relief for specific performance is discretionary the court may or may not grant it. The grounds for refusal of a decree for specific performance need not be elaborately mentioned. They are given in the Specific Relief Act and there are numerous reported authorities on the subject: (iii) Even if the suit for specific performance is decreed on payment of a certain sum, the plaintiff may not deposit any amount or at least not the full amount which is the sale price. The decree cannot be executed: (iv) Even if a decree is passed and all other conditions are fulfilled, the plaintiff may fail to execute the decree within time, hence no sale can be effected in his favour: (v) Till the sale deed is actually executed and registered, there can be no sale which can be pre -empted. Therefore to allow the defendant to raise a plea of preemption in case the suit of the plaintiff is decreed to get the suit dismissed is highly far fetched and I should say fantastic,

(3.) ON this point alone the revision application has got to be accepted. The learned counsel for the petitioner however drew my attention to Sec. 3 (5) of the Right of Prior Purchase Act. 1993 which says: - Sale of land" shall not include sale in execution of a decree for money or of an order of civil, criminal or revenue court or of a Revenue Officer :