Nazrul Islam vs Khalilur Rahman (Since Deceased ...
2023 Latest Caselaw 4501 Gua

                                                                Page No.# 1/4

GAHC010243322023




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : CRP(IO)/348/2023

         NAZRUL ISLAM
         S/O LATE AZAYEB UDDIN AHMED, R/O SATSIA KHAMAR, P.S.-LAKHIPUR,
         DIST-GOALPARA, ASSAM



         VERSUS

         KHALILUR RAHMAN (SINCE DECEASED REPRESENTED BY HIS LRS),
         FATEMA BEWA AND 4 ORS.
         W/O KHALILUR RAHMAN, R/O VILL-SATSIA KHAMAR, P.O.-
         KHALISABHITA, P.S.-LAKHIPUR, DIST-GOALPARA, ASSAM

         2:OMAR FARUK
          S/O KHALILUR RAHMAN
          R/O VILL-SATSIA KHAMAR
          P.O.-KHALISABHITA
          P.S.-LAKHIPUR
          DIST-GOALPARA
         ASSAM

         3:KHALIDA BEGUM
          D/O KHALILUR RAHMAN
          R/O VILL-SATSIA KHAMAR
          P.O.-KHALISABHITA
          P.S.-LAKHIPUR
          DIST-GOALPARA
         ASSAM

         4:KHURSIDA BEGUM
          D/O KHALILUR RAHMAN
          R/O VILL-SATSIA KHAMAR
          P.O.-KHALISABHITA
          P.S.-LAKHIPUR
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             DIST-GOALPARA
             ASSAM

            5:RAHUL AMIN
             S/O KHALILUR RAHMAN
             R/O VILL-SATSIA KHAMAR
             P.O.-KHALISABHITA
             P.S.-LAKHIPUR
             DIST-GOALPARA
            ASSA

Advocate for the Petitioner   : MR S HOQUE

Advocate for the Respondent :




                                 BEFORE
            HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                             ORDER

Date : 06.11.2023

Heard Mr. S. Hoque, learned counsel for the petitioner.

2. The petitioner plaintiff instituted TS No. 08/2012 in the Court of Munsiff No. 1 at Goalpara, amongst others, with the following prayers:

(a) That, the suit be decreed directing the defendant to execute and registered the sale deed in question in favour of the Plaintiff in respect of the property in the Schedule below.

(b) For a decree of recovery of possession of the scheduled property after executing and registering the Sale Deed.

3. To support the prayer No. (a) for a direction to execute and register the registered Sale Deed the petitioner relies upon the fact that the entire sale consideration pursuant to the agreement to sale had been paid by the petitioner Page No.# 3/4

and accordingly, it was a case for specific performance by the defendant for execution of the registered Sale Deed as a consequence of such agreement to sale and further consequence of the entire amount having been paid.

4. The learned Trial Court in its judgment dated 31.03.2015 had taken note of the execution of agreement to sale as well as the payment of entire sale consideration by the petitioner plaintiff but however, in paragraph 33 of the judgment, had recorded that the plaintiff being ready and willing to perform his part of the contract is entitled to specific relief of the agreement for sale i.e. for a direction to execute the sale deed.

5. It is noticed that the conclusion of the learned Trial Court in its judgment that the petitioner plaintiff is ready and willing to perform his part of the contract is inconsistent with the factual situation that the petitioner had already paid the entire sale consideration and what remains is for a direction to execute the consequential Sale Deed. Delivery of possession is consequential to the registration of a Sale Deed if otherwise the sale is complete and valid in all respects. But from such point of view, the second prayer i.e. prayer (b) of the petitioner plaintiff for a decree of recovery of possession of the scheduled property had not been granted by the learned Trial Court.

6. In the circumstance the petitioner instituted petition No. 143/2022 under Section 152 of the CPC read with Section 28(3) of the Specific Relief Act. Amongst others, Section 152 of the CPC is for correction by the Court of its own judgment as regards to any accidental slip or omission in the judgment that may have been passed whereas Section 28(3) of the Specific Relief Act is that if the purchaser or lessee pays the purchase money or other sum which is ordered to be paid under the decree within the period referred the purchaser or lessee may be considered for any further relief as he may be entitled to.

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7. From such point of view, we do not notice any gross irregularity in the petitioner filing the application under Section 152 of the CPC read with Section 28(3) of the Specific Relief Act inasmuch as firstly, the Trial Court had omitted to consider that the petitioner had already paid the entire sale consideration meaning thereby that the conclusion that the petitioner plaintiff is ready and willing to perform his part is inconsistent and redundant with the factual situation. Hence, prima facie it appears that there was a case of omission by the learned Trial Court in its judgment. Secondly, if the petitioner had paid the entire sale consideration, we see no reason as to why an application under Section 28(3) of the Specific Relief Act would not be maintainable for further relief of delivery of possession which in fact is the prayer (b) in the suit itself which again also cannot be a matter where the petitioner would not be entitled to the further relief based upon the omission as noticed earlier.

8. In the circumstance, issue notice to the respondents, returnable on 22.11.2023.

9. Steps on the respondents by registered post within three days. The petitioner is also allowed to effect dati.

10. Upon appearance of the respondents, a further consideration would be made on the maintainability and acceptability of the order dated 22.03.2023 passed by the learned Munsiff No. 1, Goalpara on the petition No. 143/2022 of the petitioner plaintiff.

List on 22.11.2023.

JUDGE

Comparing Assistant