Raj Kishore vs Sukhvinder Kaur & Anr.
2000 Latest Caselaw 778 Del

ORDER

S.K. Agarwal, J.

1. This is an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short the Code) whereby the plaintiff-applicant is seeking to amend the plaint and add the relief of possession in respect of the suit property being consequential to the relief of specific performance of the contract, already made in the plaint.

2. Brief facts are: that the plaintiff filed a suit for specific performance against the defendants alleging therein that on 28th October, 1996, defendants 1 and 2 agreed to sell their flats bearing No.54-C and 54-D, Pandu Nagar, New Delhi to the plaintiff for Rs.7,70,000/-; the plaintiff paid an advance of Rs.1,00,000/- towards the sale consideration to the defendants against receipts and balance of Rs.6,70,000/- was to be paid by plaintiff to the defendant Nos. 1 and 2, at the time of execution and registration of the sale deed and handing over of the possession of the said property, which was to be done within 2 months. On 28th December, 1996 letter of extension was signed by these defendants, agreeing to execute the sale documents by the end of January, 1997 on the same terms and conditions. It is pleaded that plaintiff was always ready and willing to perform his part of the contract. It is further pleaded that on 20th January, 1997 defendants 1 and 2 with ulterior motives and malafide intentions decided to sell the said property to the third party without consent of the plaintiff. A notice was served on the defendants. In reply to the notice it was stated that on 31.1.97, defendants were present in office of the sub-Registrar for execution of the documents in favour of the plaintiff, but he did not turn up for getting the sale deed executed in terms of the agreement. On the basis of the above averments, suit for specific performance was filed against defendant Nos. 1 and 2. Defendant Nos. 3 and 4 are respective property dealers and no relief is claimed against them, defendants are exparte. Now an application has been moved by the plaintiff seeking amendment of the plaint proposing to add the relief of possession as well.

3. Mr. Rajesh Gupta, learned counsel for the plaintiff argued that the amendment is being sought only to avoid multiplicity of the proceedings and that under section 22 of the Specific Relief Act, 1963, which reads as under :-

Power to grant relief for possession, partition, refund of earnest money, etc.

(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, 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: or

(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or (maid by) him, in case his claim for specific performance is refused.

(2) No relief under clause (a) or clause (b) 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 proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

(3) The power of the Court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21.

4. Mere perusal of proviso to sub-section 2 of section 22 of the Specific Relief Act mandates that court shall allow the amendment of the plaint at any stage of the proceedings so as to enable the plaintiff to include the claim of possession or partition or refund of money etc. It is only to avoid multiplicity of the proceedings.

5. In this regard reference can be made to the Supreme Court decision in Babu Lal Vs. M/s Hazari Lal, Kishori Lal & Ors. wherein it was held:-

"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 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."

6. As noticed above the plaintiff had sought a decree of specific performance of the contract. The relief of possession would be a natural consequence of the relief of specific performance. Thus the proposed amendment is necessary and essential for effective adjudication of the rights of the parties.

7. For the foregoing reasons amendment is allowed. Let the amended plaint be taken on record. No orders as to costs.

IA stands disposed of.