Kamal Kaul vs Pradeep Kumar & Anr
2011 Latest Caselaw 5420 Del

$-13
*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+                       RFA 766/2010


%                                               9th November, 2011

KAMAL KAUL                                                ..... Appellant
                        Through:    Mr. Ajay Garg, Advocate.


                  versus


PRADEEP KUMAR & ANR                                       ..... Respondents
                   Through:         Mr. Prashant Jain, Advocate.


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA


 1.    Whether the Reporters of local papers may be
       allowed to see the judgment?

 2.    To be referred to the Reporter or not?

 3.    Whether the judgment should be reported in the Digest?


VALMIKI J. MEHTA, J (ORAL)



1.     The challenge by means of this Regular First Appeal under Section 96

CPC is to the impugned judgment of the trial Court dated 02.08.2010. By the

impugned judgment, the trial Court has dismissed the suit for specific

performance by holding that once there is a clause in the Agreement for

payment of double the amount of the earnest money, then, specific
RFA No.766/2010                                                      Page 1 of 4
 performance cannot be granted.       The second ground was that the subject

property was a lease hold property and, therefore, contract with respect to

the same cannot be specifically performed.       The suit has been dismissed

without trial.


2.    The impugned judgment is clearly illegal and bound to be set aside

inasmuch as Section 23 of the Specific Relief Act, 1963 specifically provides

that even if a contract provides payment of compensation/liquidated

damages, the same is not a bar to the suit for specific performance. Section

23 of the Specific Relief Act clearly provides that the Court has to see various

attending circumstances in order to decide whether specific performance

ought to be granted or damages ought to be granted.       This aspect can only

be therefore decided at the stage of final arguments in the suit after trial is

complete. The impugned judgment, however, dismissed the suit at the stage

of pleadings without allowing the parties to lead evidence.


3.    The issue as to whether the property which is sought to be sold is only

a lease hold property and whether contract with respect to the same is

barred, is dealt with by the Supreme Court in the case of Mrs. Chandnee

Widya Vati Madden Vs. Dr. C. L. Katial, & Others; AIR 1964 SC 978

that contracts of such a nature are contingent contracts and specific

performance lies for enforcing of such contracts inasmuch as after the

decree for specific performance is granted, the respondent/seller will be



RFA No.766/2010                                                        Page 2 of 4
 bound to approach the concerned authority to obtain the necessary

permission.


4.    I have had an occasion to deal with this aspect in a recent judgment of

this Court in Col. A.B. Singh (Through L.Rs) Vs. Shri Chunnilal

Sawhney & Others RFA No.96/2002 decided on 5th October, 2011, in which

I have held that in case the defendant/seller does not obtain the necessary

permission, then, in execution proceedings, the Court will appoint a Local

Commissioner under Order XXI Rule 32 CPC to obtain the necessary

permission for sale of the property.


5.    In any case, the issues decided by the trial Court are not issues which

can be decided at the threshold by virtue of Order XIV Rule 2 CPC inasmuch

as only those legal issues which affect the jurisdiction of the Court can be

decided as preliminary issues and the issues decided by the impugned

judgment are issues of merit and not of jurisdiction.


6.    In view of the above, the impugned judgment is set aside. The trial

Court is directed now to hear and dispose of the suit in accordance with law.


7.    Nothing contained in the present judgment will, in any manner be a

reflection on merits of the case of either of the parties and the suit will be

decided at the stage of final arguments and in accordance with law

uninfluenced by any observations made in today's judgment.




RFA No.766/2010                                                      Page 3 of 4
 8.    Parties to appear before the District & Session Judge, Tis Hazari, Delhi

on 16th December, 2011, and on which date, the District & Sessions Judge,

will mark the suit to a competent Court for disposal in accordance with law.


9.    Appeal is allowed and disposed of accordingly.




November 09, 2011                                      VALMIKI J. MEHTA, J.

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