Jagdish Chander Sharma vs Naresh Chander And Ors.
2004 Latest Caselaw 175 Del

JUDGMENT

Vikramajit Sen, J.

1. The facts of the case are that on 18.1.1980 the Petitioner namely Shri Jagdish Chander Sharma had entered into an Agreement to Sell with Shri Naresh Chander. A suit for Specific Performance was filed two years later on 20.1.1982. On 22.3.1982 the Sub-Judge First Class, Delhi restrained Shri Naresh Chander from executing the Sale Deed in respect of the subject plot in favor of any other person. This suit for Specific Performance was eventually decreed on 23.9.1983. The Judgment Debtor namely Shri Naresh Chander filed an Appeal against the Decree in January, 1984. On 24.4.1984 the execution of the decree was stayed by this Court on the undertaking of the Judgment Debtor that he would not transfer, alienate or create any charge or construction on he said land. It appears that despite the undertaking the land in question was alienated. In the contempt proceedings the stay of the execution was vacated. The Sale Deed was executed by the Reader of the Court on 13.10.1998, the Decree Holder having exposited the balance sale consideration of Rs.14,000/- in the Treasury. On execution proceedings being initiated, Respondents No.2 and 3 in these proceedings namely Ashok Nahata Family Trust and A.A. and A. Agro Limited had filed objections on various grounds. The Executing Court, however, came to the conclusion that since no prayer for grant of possession had been made in the suit for specific performance, this relief could not be granted by the Executing Court. This Order dated 11.10.1996 has been impugned in this Civil Revision.

2. Mr.Agarwala, learned counsel for the Objectors/Respondents No.2 and 3, has strenuously contended that this Petition ought not to be entertained especially in view of the Decree Holder's application filed in these proceedings for the amendment of the plaint. He has also contended that no revisable error has been committed by the Executing Court. So far as the application for amendment is concerned, reliance has been placed on M/s Ex-Servicemen Enterprises (P) Limited Vs. Sumey Singh, AIR 1976 DELHI 56. In essence it has been held that since the application for amendment has been filed in the Executing Court, this came within the ambit of the expression ''at any stage of the proceedings''. It is contended that in Revision proceedings there would be no embargo to allowing an application for amendment of pleadings. Reliance has also been placed on Babu Lal Vs. M/s Hazari Lal Kishori Lal and others, . Mr. Agarwala, however, has been quick to state that neither of these cases dealt with an application for amendment of pleadings at the stage of the adjudication of a Revision Petition.

3. In my opinion it is not necessary to delve into this question of whether the amendment can or cannot be entertained in the present Revision proceedings. This is for the reason that in Babu Lal's Case (supra), the Hon'ble Supreme Court has observed that ''it may not always be necessary for the plaintiff to specifically claim possession over the property, the relief of possession being inherent in the relief for specific performance of the contract of sale.'' In this very judgment the Court has visualize instances where in a suit for Specific Performance the relief for possession ought to have been pleaded. This would, roughly stated, be those cases where the person in possession is not the same person against whom the prayer of specific performance of the contract is directed. The reason is obvious. Even for the suit for specific performance is decreed, the rights of the third party in occupation of the premises should not be affected without giving him a reasonable opportunity of being heard. It is conceivable that the person in possession sets up a defense independent of that of the party to the `Agreement to Sell'.

4. In view of the authoritative pronouncements of the Hon'ble Supreme Court it is palpably clear that the Executing Court committed an error of jurisdiction in not considering the passing of necessary Orders for the transfer of possession to the Decree Holder even in the absence of a specific prayer to this effect, in the plaint.

5. Mr. Agarwala draws my attention to the fact that various other objections had been taken by Respondents No.2 and 3/Objectors which the Executing Court found unnecessary to return a finding on it, since it has arrived at the conclusion that in the absence of the specific prayer for grant of possession, such relief could not be granted by the executing Court. Since that finding has now been set aside, the Executing Court will proceed to decide those objections in accordance with law.

6. The Revision Petition is disposed of in the above terms leaving the parties to bear their respective costs. Parties to appear before the Senior Civil Judge on 15.3.2004 who shall thereupon fix a date on which the parties are to appear before the Successor or Transferee Court.