REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Special Leave Petition (C) No.27598 of 2016

Atma Ram ... Petitioner

Versus

Charanjit Singh ... Respondent

J U D G M E N T

V. Ramasubramanian, J.

1. The holder of an agreement for the purchase of an immovable

property,  whose suit for  a mandatory injunction  (construed by  the

Trial Court as a suit for specific performance) was decreed by the Trial

Court, but which decree was upset by the First Appellate Court and

confirmed on second appeal by the High Court, has come up with the

present Special Leave Petition.

2. We have heard Shri R Basant, learned senior counsel appearing

for the petitioner and Shri Soumen Talukdar, learned counsel

appearing for the respondent.

3. The  brief facts essential for the  disposal of the special leave

petition are as follows;

(i)  On 12.10.1994, an agreement was entered into by the petitioner

with the respondent. By this agreement, the respondent agreed

to sell to the petitioner, the land and factory premises at Plot

No.90, Sector­21, Industrial Area, Bhiwani, with the land

measuring about 1250 sq.  yards.  The total  sale consideration

fixed under the agreement was Rs.4,38,000/­. An earnest money

of Rs.1,00,000/­ was paid by the petitioner to the respondent at

the time of execution of the agreement. The date for performance

of the contract was fixed under the agreement as 07.10.1996.

(ii) The petitioner   issued a legal notice dated 12.11.1996 claiming

that  when  the  date fixed for specific  performance  arrived,  he

approached the respondent for the completion of the

transaction, and that at that time, the respondent disclosed

about the pendency of some civil litigation with a third party, as

an impediment for the execution of the sale deed. Therefore, the

petitioner claimed in the legal notice that the respondent should

furnish the details of all the litigation pending in respect of the

said property and that if no litigation was pending, the

respondent should come forward to execute the sale deed within

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15 days.  

(iii) As there was no response to the legal notice, the petitioner filed

a civil suit in CS No.240 of 1999 in the Court of the Additional

Civil Judge, Senior Division, Bhiwani. The prayer made in the

suit was for a mandatory injunction to direct the respondent to

execute  all  documents of transfer  of the property in  question

after receiving the balance sale consideration. It  is relevant to

note  here that since the suit  was filed only for the relief of

mandatory injunction, the petitioner valued the suit only at

Rs.250 and paid a fixed court fee of Rs.25.

(iv) The respondent filed a written statement denying everything

including the execution of the agreement. He also questioned the

maintainability of the suit in the form in which it was filed. The

respondent further claimed that the suit was barred by

limitation.

(v) On the  basis of the pleadings, the Trial  Court framed eight

issues  for consideration on 12.10.2002. These  issues were as

follows:

“(1) Whether the plaintiff agreed to purchase the suit property from the defendant for a sum of Rs.4,38,000/­ and paid Rs.1,00,000/­ as earnest

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money on 12.10.1994 as alleged? OPP

(2) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for? OPP

(3) Whether the plaintiff has no locus­standi to file the suit? OPD

(4) Whether the plaintiff has no cause of action to file the suit? OPD

(5) Whether the suit is not maintainable in the present form? OPD

(6) Whether the suit is bad for  mis­joinder and  non­ joinder of necessary parties? OPD

(7) Whether the plaintiff is estopped by his own act and conduct from filing the suit? OPD

(8) Relief.”

(vi) After filing the written statement, the respondent also took out

an application for the dismissal of the suit on the ground that a

suit for mandatory injunction was not maintainable for enforcing

specific performance of an agreement of sale. The said

application was disposed of by the Trial Court by a very curious

order, dated 09.08.2003, holding that the suit was in fact one for

specific performance of an agreement of sale and that the

technical objection regarding the maintainability could be

overcome by directing the petitioner/plaintiff to pay the requisite

court fee. Accordingly, Trial Court directed the

petitioner/plaintiff to make good the deficit court fee on or before

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08.09.2003.

(vii) Unfortunately, the respondent did not  challenge  the aforesaid

order of the Trial Court dated 09.08.2003. As a consequence, the

petitioner/plaintiff paid the deficit court fee and the trial court

chose to treat the suit as one for specific performance.

(viii) After so overcoming a major hurdle, the Trial Court decreed the

suit by a judgment dated 03.02.2006, directing the petitioner to

pay the  balance  of sale consideration  within  one  month  and

directing the respondent to get the suit property transferred in

the name of the petitioner, directly from HUDA.

(ix) Aggrieved by the judgment and decree, the respondent filed a

regular first appeal in Civil Appeal No. 181 of 2006, on the file of

Additional District Court, Bhiwani. By a judgment dated

02.01.2013, the District Court allowed the appeal and set aside

the judgment of the Trial Court, thereby dismissing the suit.

(x) Aggrieved by the judgment of the First Appellate Court, the

petitioner filed a second appeal in RSA No.1244 of 2013 on the

file of the High Court of Punjab & Haryana at Chandigarh. The

High Court dismissed the second appeal by a judgment dated

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20.05.2016. It is against the said judgment and decree that the

plaintiff has come up with the above special leave petition.

4. The main fulcrum of the argument of Shri R. Basant, learned

senior counsel appearing for the petitioner is that by the order dated

9.08.2003, the Trial Court chose to treat the suit for mandatory

injunction as one for specific performance and directed the

petitioner/plaintiff to pay the deficit court fee and that the petitioner

also complied with the said order. Therefore, it is contended that by

virtue of Section 149 of the Code of Civil Procedure, such payment

would have the same force and effect as if such fee had been paid in

the  first instance  itself.  But, the High Court  held  the suit  as  time

barred. This, according to the learned senior counsel for the

petitioner, is contrary to law in the teeth of section 149 of the Code. It

is his further contention that the effect of Section 16(c) of the Specific

Relief Act, 1963 was not considered in the proper prospective by the

High Court with particular reference to the facts of the case and that,

therefore, the judgment of the High Court stood vitiated.

5. We have carefully considered the above contentions. It  is true

that Section 149 CPC confers a discretion upon the Court to allow a

person, at any stage, to pay the whole or part of the court fee actually

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payable on the document,  but which has not  been paid.  Once the

Court exercises such a discretion and payment of court fee is made in

accordance with the said decision, the document, under Section 149,

shall have the same force and effect as if such fee had been paid in

the first instance.

6. But in this case, the question was not merely one of limitation.

As we have stated earlier, the suit agreement of sale was dated

12.10.1994.   According to the petitioner, the last date fixed for the

performance of the obligations under the contract, was 7.10.1996. A

legal notice was issued by the petitioner on 12.11.1996. But the plaint

itself  was  presented  only on  13.10.1999,  which  was  beyond three

years of the date 7.10.1996, fixed under the agreement of sale for the

performance of the contract. (Though the petitioner has claimed before

us that the plaint was presented on 3.10.1999, the copy of the

judgment as well as the decree of the Trial Court indicate the date of

presentation  of the  plaint  as  13.10.1999).  The relief sought in the

plaint as it was originally presented, was for a mandatory injunction

to direct the respondent to receive the balance sale consideration and

to get a document of transfer effected in favour of the petitioner. The

petitioner/plaintiff was obviously conscious of the nature of the relief

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prayed for by him. This is why he valued the relief claimed in the suit

at Rs.250/­ and paid a fixed court fee of Rs.25/­. The respondent took

an objection in his written statement,  to the maintainability of  the

suit, in the form in which it was filed. Therefore, the Trial Court also

framed an issue as to whether the suit was not maintainable in the

present form, as issue No.5. It was only after issues were framed on

12.10.2002 that the Trial Court took up the application filed by the

respondent for the dismissal of the suit. It is in that application that

the  Trial  Court  passed the  order  dated  09.08.2003  permitting the

petitioner/plaintiff to pay the deficit court fee by treating the prayer

made as one for specific performance. Instead of addressing the issue

as to whether the petitioner could indirectly seek specific performance

of an agreement of sale, by couching the relief as one for mandatory

injunction and paying a fixed court fee as payable in a suit for

mandatory injunction, the Trial Court, by a convoluted logic, chose to

treat the suit as one for specific performance and permitted the

petitioner to pay deficit court fee.   

7. As  a  matter  of fact, if the suit  was  actually  one for specific

performance, the petitioner ought to have at least valued the suit on

the basis of the sale consideration mentioned in the agreement. But

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he did not. If the suit  was only  for  mandatory  injunction  (which  it

actually was), the only recourse open to the petitioner was to seek an

amendment under Order VI, Rule 17 CPC. If such an application had

been filed, it  would  have either  been  dismissed on the ground of

limitation (K.Raheja Constructions Ltd., vs. Alliance Ministries1)

or even if allowed, the prayer for specific performance, inserted by way

of amendment, would not have been, as a matter of course, taken as

relating back to the date of the plaint (Tarlok Singh vs. Vijay

Kumar2, Van Vibhag Karamchari Griha Nirman Sahkari Sanstha

Maryadit vs. Ramesh Chander3). Therefore, a short­cut was found

by the petitioner/plaintiff to retain the plaint as such, but to seek

permission to pay deficit court fee, as though what was filed in the

first instance  was  actually  a  suit for  specific  performance.  Such a

dubious approach should not be allowed especially in a suit for

specific performance, as the relief of specific performance is

discretionary under Section 20 of the Specific Relief Act, 1963.   

8. It  may  be true that the  approach  of the  High  Court in  non

suiting the petitioner/plaintiff on the ground of limitation, despite the

original defect having been cured and the same having attained 1 1995 Suppl. (3) SCC 17 2 1996 (8) SCC 367  3 2010 (14) SCC 596  

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finality, may be faulty. But we would not allow the petitioner to take

advantage of the same  by taking shelter  under  Section  149  CPC,

especially when he filed the suit (after more than three years of the date

fixed under the agreement of sale) only as one for mandatory injunction,

valued the same as such and paid court fee accordingly, but chose to

pay proper court fee after being confronted with an application for the

dismissal of the suit. Clever ploys cannot always pay dividends.

9. Coming to the second aspect revolving around Section 16(c), a

look at the judgment of the Trial Court would show that no issue was

framed on the question of readiness and willingness on the part of the

petitioner/plaintiff in terms of Section 16(c) of the Specific Relief Act,

1963. The fact that the petitioner chose to issue a legal notice dated

12.11.1996 and the fact that the petitioner created an alibi in the form

of an affidavit executed before the Sub­Registrar on 7.10.1996 (marked

as Exhibit P­2) to show that he was present before the Sub­Registrar for

the purpose of completion of the transaction, within the time

stipulated for its performance, was not sufficient to conclude that the

petitioner continued to be ready and willing even after three years, on

13.10.1999 when the plaint was presented. No explanation was

forthcoming from the petitioner for the long delay of three years, in

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filing the suit  (on 13.10.1999) after issuing a legal notice on

12.11.1996.  The conduct of  a  plaintiff is  very crucial in  a  suit for

specific performance. A person who issues a legal notice on

12.11.1996 claiming readiness and willingness, but who institutes a

suit only on 13.10.1999 and that too only with a prayer for a

mandatory injunction carrying a fixed court fee relatable only to the

said relief,  will  not be entitled to the discretionary relief  of  specific

performance.

10.  Therefore, we are of the considered view that the first Appellate

Court rightly reversed the decree of specific performance granted by

the Trial Court and the High Court was right in upholding the

judgment of the first Appellate Court.   

11. In  view of the  above, the special leave  petition is  dismissed.

There will be no order as to costs.

…..…………....................J       (N.V. Ramana)

.…..………......................J       (V. Ramasubramanian)

FEBRUARY  10, 2020 NEW DELHI.

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