Civil Revision No.2523 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.2523 of 2011(O&M) Date of Decision: May 3, 2011 Mahendra Kumar and another .....Petitioners v. Praveen Kumar and another .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Raman Sharma, Advocate for the petitioners. ..... RAM CHAND GUPTA, J.(Oral) The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 4.1.2011, passed by learned Civil Judge, Junior Division, Faridabad, vide which application filed by petitioners under Section 151 of the Code of Civil Procedure (for short `the Code') to direct respondent no.1-defendant no.1 to pay the balance sale consideration and other expenses so that petitioners-plaintiffs execute the sale deed in his favour, was dismissed. I have heard learned counsel for the petitioners and have gone through the whole record carefully including the impugned order passed by learned trial Court. Facts relevant for the decision of present revision petition are that parties entered into an agreement to sell the land in dispute dated 8.10.2008 for a total sale consideration of `42,85,360/-. `4,30,000/- were received by present petitioners-plaintiffs as earnest money and the remaining amount was to be paid at the time of execution of the sale deed. Dispute arose between the parties. Present suit has been filed by petitioners-plaintiffs for a decree for declaration that agreement dated 8.10.2008 entered between the parties regarding plot in dispute stands terminated and is not enforceable by defendant no.1 with a consequential relief of permanent injunction restraining respondent no.2-defendant no.2 Civil Revision No.2523 of 2011(O&M) -2- from considering or acting upon any representation made by respondent no.1-defendant no.1 regarding plot in dispute on the basis of agreement dated 8.10.2008 with a further relief for recovery of `70,000/- from respondent no.1-defendant no.1 as damages/compensation. Defendant no.1 appeared and filed written statement admitting the fact of execution of agreement to sell. However, the plea has been taken that he was always ready and still ready to perform his part of the contract and, in fact, petitioners-plaintiffs failed to furnish necessary documents, i.e., `No Objection Certificate' by concerned department, permission for transfer and `No Dues Certificate' from Municipal Corporation, Faridabad, and other departments. Plea has also been taken that the very suit is not maintainable. After filing of the written statement by respondent no.1- defendant no.1, the present application has been filed by petitioners- plaintiffs under Section 151 of the Code directing respondent no.1- defendant no.1 to make the payment of balance sale consideration and other expenses upon which they will execute the sale deed in his favour and that the same would be subject to decision in the present suit and if petitioners- plaintiffs are able to prove that breach was on the part of defendant no.1, then the earnest money shall stand forfeited and defendant no.1 would be liable to pay `4,30,000/- and damages/compensation of sum of `70,000/- with pendente lite and future interest and if defendant no.1 is able to prove that the breach was on the part of petitioners-plaintiffs, then he would not be liable to pay any further sum to the petitioners-plaintiffs. Application has been opposed by respondent-defendant, which was dismissed by learned trial Court vide impugned order by observing as under:- “5. The relief sought by the plaintiffs in the present suit is that the agreement to sell dated 8.10.2008 entered into by the plaintiffs with defendant no.1 be declared as terminated one and not enforceable. Another relief is that of compensation/damages to the tune of `70,000/- to the plaintiffs from defendant no.1. In other words, in the prayer clause of the plaint, the plaintiffs have sought a declaration to the effect that the agreement to sell dated 8.10.2008 stand terminated. But taking a contrary stand now by means of the Civil Revision No.2523 of 2011(O&M) -3- application under Section 151 CPC, the plaintiffs have sought direction to the defendants to make payment of the balance sale consideration in pursuance of the very agreement to sell dated 8.10.2008. In other words, in the present application the plaintiffs have taken a stand totally contradictory to the one taken by them in the prayer clause of the plaint. Hence, the application under Section 151 CPC is not maintainable because the plaintiffs could not be permitted to take a stand altogether different from the one taken by them in the relief clause of the plaint. However, the parties are themselves at liberty to reach a settlement on their own out of the court and withdraw the suit in terms of such settlement, if any. With the above observations, the present application is dismissed being devoid of merits.” It has been contended by learned counsel for the petitioners- plaintiffs that the present application has been filed on the principle of equity just to curtail the litigation. However, in my view there is no force in the argument of learned counsel for the petitioners-plaintiffs. Even the main relief sought by petitioners-plaintiffs in the suit for declaration cannot be granted. If petitioners-plaintiffs are having any grudge against respondent no.1- defendant no.1 that he has violated any terms and conditions of the agreement, they should have filed suit for specific performance of the agreement. Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and Civil Revision No.2523 of 2011(O&M) -4- that a grave injustice or gross failure of justice has occasioned thereby. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 3.5.2011 (Ram Chand Gupta) meenu Judge