SCA/1232720/2008 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12327 of 2008 With SPECIAL CIVIL APPLICATION No. 12328 of 2008 With SPECIAL CIVIL APPLICATION No. 12344 of 2008 With SPECIAL CIVIL APPLICATION No. 12345 of 2008 With SPECIAL CIVIL APPLICATION No. 12346 of 2008 With SPECIAL CIVIL APPLICATION No. 12347 of 2008 With SPECIAL CIVIL APPLICATION No. 12348 of 2008 With SPECIAL CIVIL APPLICATION No. 12349 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = KANAIYALAL CHANDULAL GANESHWALA - Petitioner(s) Versus ZUBEDABIBI D/O GULAM AHMAD DECEASED THROUGH LEGAL HEIRS & 5 - Respondent(s) ========================================= = Appearance : MR RS SANJANWALA for Petitioner(s) : 1, SCA/1232720/2008 2/13 JUDGMENT MR SP MAJMUDAR for Respondent(s) : 1 - 6. MR PP MAJMUDAR for Respondent(s) : 1 - 6. ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 18/12/2008 ORAL JUDGMENT 1. As common question of law and fact arise in these petitions, they are being disposed of by this common judgement and order. 2 Special Civil Application No. 12327/2008 is filed by the petitioner under Article 227 of the Constitution of India challenging the impugned order passed by the learned Principal Civil Judge, Hansoth dated 02/08/2008 below Exh. 73 in Regular Civil Suit No. 33/2005 in dismissing the application submitted by the petitioner-original plaintiff to amend the plaint by adding the prayer of possession with respect to the disputed land in question. 2.1. Special Civil Application No. 12328/2008 is filed by the petitioner under Article 227 of the Constitution of India challenging the impugned order passed by the learned Principal Civil Judge, Hansoth dated 02/08/2008 below Exh. 67 in Regular Civil Suit No. 29/2006 in dismissing the application submitted by the petitioner-original plaintiff to amend the plaint by adding the prayer of possession with respect to the disputed land in question. SCA/1232720/2008 3/13 JUDGMENT 2.2. Special Civil Application No. 12344/2008 is filed by the petitioner under Article 227 of the Constitution of India challenging the impugned order passed by the learned Principal Civil Judge, Hansoth dated 02/08/2008 below Exh. 83 in Regular Civil Suit No. 36/2005 in dismissing the application submitted by the petitioner-original plaintiff to amend the plaint by adding the prayer of possession with respect to the disputed land in question. 2.3. Special Civil Application No. 12345/2008 is filed by the petitioner under Article 227 of the Constitution of India challenging the impugned order passed by the learned Principal Civil Judge, Hansoth dated 02/08/2008 below Exh. 86 in Regular Civil Suit No. 37/2005 in dismissing the application submitted by the petitioner-original plaintiff to amend the plaint by adding the prayer of possession with respect to the disputed land in question. 2.4. Special Civil Application No. 12346/2008 is filed by the petitioner under Article 227 of the Constitution of India challenging the impugned order passed by the learned Principal Civil Judge, Hansoth dated 02/08/2008 below Exh. 81 in Regular Civil Suit No. 35/2005 in dismissing the application submitted by the petitioner-original plaintiff to amend the plaint by adding the prayer of possession with respect to the disputed land in question. 2.5. Special Civil Application No. 12347/2008 is filed by the petitioner under Article 227 of the Constitution of India challenging the impugned order passed by the learned Principal Civil Judge, Hansoth dated 02/08/2008 below Exh. 82 SCA/1232720/2008 4/13 JUDGMENT in Regular Civil Suit No. 34/2005 in dismissing the application submitted by the petitioner-original plaintiff to amend the plaint by adding the prayer of possession with respect to the disputed land in question. 2.6. Special Civil Application No. 12348/2008 is filed by the petitioner under Article 227 of the Constitution of India challenging the impugned order passed by the learned Principal Civil Judge, Hansoth dated 02/08/2008 below Exh. 39 in Regular Civil Suit No. 28/2006 in dismissing the application submitted by the petitioner-original plaintiff to amend the plaint by adding the prayer of possession with respect to the disputed land in question. 2.7. Special Civil Application No. 12349/2008 is filed by the petitioner under Article 227 of the Constitution of India challenging the impugned order passed by the learned Principal Civil Judge, Hansoth dated 02/08/2008 below Exh. 85 in Regular Civil Suit No. 32/2005 in dismissing the application submitted by the petitioner-original plaintiff to amend the plaint by adding the prayer of possession with respect to the disputed land in question. 3. All the aforesaid suits are filed by the respective petitioner-original plaintiff for specific performance of respective agreement to sell/satakhat. It appears that in the aforesaid suits, prayer with respect to possession was not sought and, therefore, the respective petitioner-original plaintiff submitted respective applications under Order 6 Rule 17 of the Code of Civil Procedure permitting them to amend the plaint by adding the prayer with respect to possession. It SCA/1232720/2008 5/13 JUDGMENT appears that the said amendment was sought considering Section 22 of the Specific Relief Act (hereinafter referred to as “the Act”). All the aforesaid applications were opposed on the ground that the respective suits were filed in the year 2005 and the respective applications for amendment have been submitted after a period of almost 2 ½ years and no cause has been shown why such applications have been submitted belatedly. The learned Judge dismissed the aforesaid applications by observing that at the time when the respective suits were filed, the respective petitioner-original plaintiff was aware of the fact that the respondents-original defendants are in possession of the land in question and at that time the respective petitioner-original plaintiff could have prayed for relief of possession and, therefore, if now the respective petitioner-original plaintiff is permitted to amend the plaint, it will change the nature of the suit and on considering the decision of the Hon'ble Supreme Court in the case of AJENDRAPRASADJI N. PANDE & ANR Vs. KESHAVPRAKASHDASJI N. & ORS reported in 2007 (3) GLR 1872, the learned trial Court by impugned orders dismissed the aforesaid applications by not permitting the respective petitioner-original plaintiff to amend the plaint by amending the prayer clause for possession. Being aggrieved and dissatisfied with the impugned orders passed by the learned trial Court dismissing the respective applications for amendment of the plaint, the respective petitioner-original plaintiff has preferred the present Special Civil Applications under Article 227 of the Constitution of India. 4. Shri R.S. Sanjanwala, learned advocate appearing on behalf of the respective petitioner-original plaintiff has SCA/1232720/2008 6/13 JUDGMENT vehemently submitted that the learned trial Court has materially erred in not considering Sub-Section (2) of Section 22 of the Act. It is submitted that as provided under Sub- Section (2) of Section 22 of the Act, where the plaintiff has not claimed any relief for possession 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 a claim for possession and, therefore, it is submitted that the Specific Relief Act being a special Act, bar under Order 6 Rule 17 of the Code of Civil Procedure, if any, would not be applicable and/or attracted. It is further submitted that Section 22 of the Act starts with notwithstanding clause and it is provided that notwithstanding anything to the contrary contained in the Code of Civil Procedure, and, therefore, Order 6 Rule 17 of the Code of Civil Procedure would not be applicable and/or attracted. It is further submitted by him that in view of the mandate under Section 22 of the Act, more particularly, Order 6 Rule 17 of the Code of Civil Procedure, would not be attracted as the Specific Relief Act is a special law and Order 6 Rule 17 of the Code of Civil Procedure is a procedural law and, therefore, it is submitted that when there is a conflict between special law and general law, provisions under special law would have an overriding effect. Shri R.S. Sanjanwala, learned advocate appearing on behalf of the respective petitioner-original plaintiff has heavily relied upon the decision of the Hon'ble Supreme Court in the case of BABU LAL Vs. M/s HAZARI LAL KISHORI LAL AND ORS reported in AIR 1982 SC 818. It is submitted by him that while dealing with Section 22 of the Act, the Hon'ble Supreme Court has held and observed that in the suit for specific performance of agreement to sell, relief of possession can be granted at appellate stage. It is submitted SCA/1232720/2008 7/13 JUDGMENT that as observed by the Hon'ble Supreme Court in the said decision, even at the stage of execution also, relief of possession can be claimed and, therefore, it is requested to allow the present Special Civil Applications by permitting the respective petitioner-original plaintiff to amend the plaint by amending the prayer clause for possession of the disputed land in question. 5. All these petitions are opposed by Shri S.P. Majmudar, learned advocate appearing on behalf of the respective respondents-original defendants. It is submitted that considering the fact that the applications for amendment in the plaint were submitted after a period of 2 ½ years i.e. belatedly, considering the decision of the Hon'ble Supreme Court in the case of AJENDRAPRASADJI N. PANDE & ANR Vs. KESHAVPRAKASHDASJI N. & ORS (Supra), the learned trial Court has rightly rejected the applications by not permitting the respective petitioner-original plaintiff to amend the plaint. It is submitted that as rightly observed by the learned trial Court, all the petitioner-original plaintiff were aware of the fact, at the time of filing the suits, that the respective respondents-original defendants were in possession of the disputed land in question and, therefore, the learned trial Court has rightly dismissed the applications for amendment by holding that now it is not open for the respective petitioner-original plaintiff to pray for amendment in the plaint claiming possession. It is submitted that even no cause has been shown why at the relevant time the respective petitioner-original plaintiff have not prayed for the relief of possession. It is submitted that if the respective petitioner- original plaintiff are permitted to amend the plaint, at this SCA/1232720/2008 8/13 JUDGMENT stage, it would be against the object and purpose of amendment under Order 6 Rule 17 of the Code of Civil Procedure and it would further delay the proceedings of the suits and, therefore, it is requested to dismiss all the petitions. 6. Heard the learned advocates appearing on behalf of the respective parties. At the outset, it is required to be noted that the respective petitioner-original plaintiff have instituted the respective suits for specific performance of the respective agreement to sell. It is an admitted position that though the respective petitioner-original plaintiff claimed for decree for specific performance of the agreement to sell, they did not ask for relief of possession of the disputed land. As per Section 22 of the Specific Relief Act, 1963, notwithstanding anything to the contrary contained in the Code of Civil Procedure, any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for --- (a) possession, or partition and separate possession, of the property, in addition to such performance. As per Sub-Section (2) of Section 22 of the Specific Relief Act, no relief for possession under Clause (a) 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 proceedings, allow him to amend the plaint on such terms as may be just for including a claim for such a SCA/1232720/2008 9/13 JUDGMENT relief. 7. Thus, in view of Sub-Section (2) of Section 22 of the Act, as the relief for possession was not sought by the respective petitioner-original plaintiff in the aforesaid suits for specific performance of the respective agreement to sell, the respective petitioner-original plaintiff has prayed for amendment in the plaint praying/directing for possession of the disputed land in question and accordingly, the respective petitioner-original plaintiff submitted applications for amendment permitting them to amend the plaint by claiming possession of the land in question. 8. Section 22 came to be considered by the Hon'ble Supreme Court in the case of BABU LAL Vs. M/s HAZARI LAL KISHORI LAL AND ORS (Supra). The relevant important observations of the Hon'ble Supreme Court in the aforesaid decisions are as under; “11. Section 22 enacts a rule of pleading. The Legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance, even though, strictly speaking, the right to possession accrues only when suit for specific performance is decreed. The Legislature has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the Court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession. SCA/1232720/2008 10/13 JUDGMENT 12. The Section enacts that a person in a suit for specific performance of a contract for the transfer of immovable property, may ask for appropriate reliefs, namely, he may ask for possession, or for partition or for separate possession including the relief for specific performance. These relies, he can claim, notwithstanding anything contained in the Code of Civil Procedure, 1908, to the contrary. Sub-Section (2) of this Section, however, specifically provides that these reliefs cannot be granted by the Court, unless they have been expressly claimed by the plaintiff in the suit. Sub-Section (2) of the Section recognised in clear terms the well-established rule of procedure that the Court should not entertain a claim of the plaintiff unless it has been specifically pleaded by the plaintiff and proved by him to be legally entitled to. The proviso to this Sub-Section (2), however, says that where the plaintiff has not specifically claimed these reliefs in his plaint, in the initial stages of the suit, the Court shall permit the plaintiff at any stage of the proceedings, to include one or more of the reliefs, mentioned above by means of an amendment of the plaint on such terms as it may deem proper. The only purpose of this newly enacted provision is to avoid multiplicity of the suits and that the plaintiff may get appropriate relief without being hampered by procedural complications. 13. The expression in Sub-Section (1) of Section 22 'in an appropriate case' is very significant. The plaintiff may ask for the relief of possession or partition or separate possession 'in an appropriate case'. As pointed out earlier, in view of Order 2, Rule 2 of Code of Civil Procedure some doubt was entertained whether the relief for specific performance and partition and possession could be combined in one suit; one view being that the cause of action for claiming relief for partition and possession could accrue to the plaintiff only after he acquired title to the property on the execution of a sale deed in his favour and since the relief for specific performance of the contract for sale was not based on the same cause of action as the reliefs for partition and possession, the two reliefs, could not be combined in one suit. Similarly, a case may be visualized where after the contract between the plaintiff and the defendant the property passed in possession of a third person. A mere relief for specific performance of the contract of sale may not entitle the plaintiff to obtain possession as against the SCA/1232720/2008 11/13 JUDGMENT party in actual possession of the property. As against him, a decree for possession must be specifically claimed for such a person is not bound by the contract sought to be enforced. In a case where exclusive possession is with contracting party, a decree for specific performance of the contract of sale simplicitor, without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree against him completely he is bound not only to execute the sale-deed but also to put the property in possession of the decree-holder. This is in consonance with the provisions of Section 55 (1) of the T.P. Act, which provides that the seller is bound to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature admits. 20. It is thus clear that the Legislature has given ample power to the Court to allow amendment of the plaint at any stage, including the execution proceedings. In the instant case the High Court granted the relief of possession and the objection raised on behalf of the petitioner is that this was not possible at the execution stage and in any case the Court should have allowed first an amendment in the plaint and then an opportunity should have been afforded to the petitioner to file an objection. 21. If once we accept the legal position that neither a contract for sale nor a decree passed on that basis for specific performance of the contract gives any right or title to the decree-holder and the right and the title passes to him only on the execution of the deed of sale either by the judgement-debtor himself or by the Court itself in case he fails to execute th sale deed, it is idle to contend that a valuable right had accrued to the petitioner merely because a decree has been passed for the specific performance of the contract. The limitation would start against the decree-holders only after they had obtained a sale in respect of the disputed property. It is, therefore, difficult to accept that a valuable right had accrued to the judgement-debtor by lapse of time. Section 22 has been enacted only for the purpose of avoiding multiplicity of proceedings which the law Courts always abhor.” SCA/1232720/2008 12/13 JUDGMENT 9. Now in light of the aforesaid observation of the Hon'ble Supreme Court, if Sub-Section (2) of Section 22 of the Act is considered, in a case where the petitioner-original plaintiff has not asked for possession, the Court shall, at any stage of the proceeding, allow the petitioner-original plaintiff to amend the plaint on such terms as may be claimed for possession and, therefore, once amendment is sought in the suit for specific performance of agreement to sell asking for possession, the Court has no other alternate but to allow the petitioner-original plaintiff to amend the plaint, on such terms as may be just for including a claim for possession and the Court has no other alternate but to permit the petitioner- original plaintiff to amend the plaint asking for possession. It cannot be disputed that Specific Relief Act is a special Act and Section 22 is enacted for specific purpose to avoid multiplicity of proceedings (as observed by the Hon'ble Supreme Court in the aforesaid decision), and, therefore, Section 22 of the Act would override the procedural law, more particularly, Order 6 Rule 17 of the Code of Civil Procedure. Under the circumstances, the bar/restriction as provided under Order 6 Rule 17 of the Code of Civil Procedure would not be attracted in a case where amendment in the plaint is sought in the suit for specific performance of agreement to sell claiming relief of possession. 10. Under the circumstances, the impugned orders passed by the learned trial Court rejecting the applications for amendment in the plaint deserves to be quashed and set aside on imposing reasonable cost, which is quantified at Rs. 28,000/-, which is agreeable to Shri R.S. Sanjanwala, learned advocate appearing on behalf of the respective petitioner- SCA/1232720/2008 13/13 JUDGMENT original plaintiff. 11. For the reasons stated hereinabove, all the Special Civil Applications succeed. The impugned orders passed by the learned Principal Civil Judge, Hansoth below Exh.73 in Regular Civil Suit No. 33/2005, Exh. 67 in Regular Civil Suit No. 29/2006, Exh. 83 in Regular Civil Suit No. 36/2005, Exh. 86 in Regular Civil Suit No. 37/2005, Exh. 81 in Regular Civil Suit No. 35/2005, Exh. 82 in Regular Civil Suit No. 34/2005, Exh. 39 in Regular Civil Suit No. 28/2006 and Exh. 85 in Regular Civil Suit No. 32/2005 are hereby quashed and set aside on condition that the respective petitioner-original plaintiff shall deposit a sum of Rs. 28,000/- with the learned trial Court within a period of four weeks from today and on that condition the respective petitioner-original plaintiff are permitted to amend the plaint as prayed for. On such a deposit, the learned trial Court is directed to pay an amount of Rs. 3,500/- to each of the respondent-original defendant by an account payee cheque. Rule is made absolute accordingly in each petitions. (M.R. SHAH, J.) siji