K.V.K.Sayyid Hashim vs P.P.Muhamed Yasin
2023 Latest Caselaw 8629 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 WEDNESDAY, THE 9TH DAY OF AUGUST 2023 / 18TH SRAVANA, 1945
                 R.S.A. NO. 259 OF 2021
  AGAINST THE JUDGMENT AND DECREE DATED 04.01.2021 IN
 A.S.NO.30 OF 2020 OF THE ADDITIONAL DISTRICT COURT-II,
    MANJERI CONFIRMING THE JUDGMENT AND DECREE DATED
28.02.2020 IN O.S.NO.334 OF 2016 OF THE MUNSIFF'S COURT,
                         MANJERI
APPELLANT/APPELLANT/DEFENDANT:

         K.V.K.SAYYID HASHIM
         AGED 44 YEARS, S/O. SAYYID SALIH POOKOYA
         THANGAL, R3 C. SABAN GOLDEN VILLAGE, PONMALA
         VILLAGE, VALIYAPARAMBA, PUTHUR P.O, KOTTAKKAL
         VIA, MALAPPURAM DISTRICT, PIN-676 507.
         BY ADVS.
         K.P.SREEKUMAR
         SRI.P.GOPAL


RESPONDENT/RESPONDENT/PLAINTIFF:

         P.P.MUHAMED YASIN,
         AGED 69 YEARS, S/O. MUHAMMED KUTTY, MOULANA
         HOUSE, MANGALAM AMSOM, KOOTAYI DESOM, TIRUR
         TALUK, MALAPPURAM DISTRICT, PIN 676 561.
         BY ADVS.
         SRI.T.KRISHNAN UNNI (SR)
         VINOD RAVINDRANATH
         SMT.MEENA.A.
         SRI.M.DEVESH
         SMT.M.R.MINI
         SRI.K.C.KIRAN
         SRI.ASHWIN SATHYANATH
         SHRI.ANISH ANTONY ANATHAZHATH
         SHRI.THAREEQ ANVER


     THIS REGULAR SECOND APPEAL HAVING COME UP FOR FINAL
HEARING ON 05.07.2023, THE COURT ON 09.08.2023 DELIVERED
THE FOLLOWING:
                                     2
R.S.A.No.259 of 2021



                    P.G. AJITHKUMAR, J.
   -----------------------------------------------------------
                    R.S.A.No. 259 of 2021
   -----------------------------------------------------------
           Dated this the 9th day of August, 2023

                               JUDGMENT

The appellant is the defendant in O.S.No.334 of 2016

before the Munsiff Court, Manjeri. The respondent filed the

suit seeking a decree of mandatory injunction which was

decreed. An appeal was preferred by the appellant before the

Additional District Judge-II, Manjeri, but the appeal failed.

Feeling aggrieved thereby this second appeal has been

preferred.

2. When this matter came up for admission on

08.03.2021, this Court after hearing the learned counsel

appearing for the appellant and the learned Senior Counsel

appearing for the respondent referred the matter for

mediation. An interim order directing both sides to maintain

status quo till 30.03.2021 was granted. Later the order was

extended from time to time. The attempt for a settlement

failed. Thereafter, on 05.08.2021 this Court admitted the

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appeal. On the said date, I.A.Nos.1 and 3 of 2021 were

disposed of after a detailed order. The said interlocutory order

was challenged by the respondents herein before the Apex

Court by filing S.L.P.(C) No.15055 of 2021. The said S.L.P was

disposed of by the Apex Court as per the order dated

01.10.2021 by ordering as follows:

"Mr.K.V.Vishwanathan, learned senior counsel appearing for the respondent, states that the entire amount in terms of the Court order stands deposited and some teachers have also been appointed.

The present Special Leave Petition is directed against an interim order and that the fact that the order is more to settle equities between the parties, therefore, we do not wish to interfere in proceedings under Article 136 of the Constitution of India, except to say that all appointments, if any made, shall be subject to the decision of the second appeal by the High Court. In view of above, the Special Leave Petition is disposed of. Pending interlocutory application(s), if any, is/are disposed of."

3. Heard the learned counsel appearing for the

appellant and the learned Senior Counsel appearing on

instructions for the respondents.

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4. The appellant is the owner of 2.981 acres of land

and three aided schools situated thereon. He, as per Ext.A1

agreement dated 25.09.2013 agreed to sell the property and

the school to the original respondent for a sale consideration

of Rs.1,90,00,000/-(Rupees One crore ninety lakh only). At

the time of the agreement, Rs.55,00,000/-(Rupees Fifty Five

lakh) was paid as advance sale consideration. There were

subsequent payments to the appellant by the respondent

towards sale consideration. Terms of the agreement envisage

submission before the Director of Public Instructions a joint

application for the transfer of the school and its management.

The respondents alleging that in spite of notice, the appellant

failed to turn up for submitting a joint application to the

Director of Public Instructions, filed the suit seeking a decree

of mandatory injunction.

5. The appellant filed a written statement. He

admitted the execution of Ext.A1 agreement. He also

admitted receipt of Rs.1,01,50,000/- (Rupees One crore one

lakh fifty thousand only), which constitutes the payments at

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the time of execution of Ext.A1 and on a few later occasions,

from the respondent. Again an amount of Rs.25,00,000/- was

paid by the respondent to the appellant. He contended that an

amount of Rs.63,50,000/- is still due towards the balance sale

consideration and on making payment of that sum, he would

join in submitting the joint application and execute the sale

deed. The further contentions of the appellant were that such

a decree of mandatory injunction is not liable to be granted

and the Director of Public Instructions is a necessary party.

6. The learned Munsiff held trial on the issues, namely,

whether the plaintiff was entitled to get a mandatory injunction

as prayed and what should be the order as to costs. No oral

evidence was let in by either side. Exts.A1 and A2 on the side of

the respondent and B1 and B2 on the side of the appellant were

received in evidence. The learned Munsiff holding that the

agreement in Ext.A1 being that after six months of getting

permission from the Director of Public Instructions alone the

respondent is obliged to pay the balance sale consideration and

the only contention of the appellant being non-payment of the

R.S.A.No.259 of 2021

balance sale consideration of Rs.63,50,000/-, a decree of

mandatory injunction was to be granted.

7. Before the lower appellate court, several fresh

contentions were raised. It was contended that a suit for a

mandatory injunction should not have been entertained since

the execution of the sale deed was a condition precedent for

the transfer of the ownership and management of the school.

It was contended that Section 6 of the Kerala Education Act,

1958 interdicts such a transfer of ownership and going by the

provisions of Rule 5A of the Kerala Education Rules, 1959 the

respondent should not have insisted on submitting a joint

application before execution of the sale deed. The first

appellate court considered the said questions of law as well as

the factual aspects and held that the decree of the trial Court

did not suffer from any infirmity. The learned Appellate Judge

placed reliance in Roopa A.K v. State of Kerala and others

[2014 (1) KLT 483] and held that when a running school as

such; the landed properties together with the right of

management is transferred, Section 6 of the Education Act

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does not have application. The learned Appellate Judge by

acting upon the terms in the agreement that the obligation of

the respondent to make payment of the balance sale

consideration arises only after obtaining permission from the

Director of Public Instructions for the transfer in his favour of

the management of the school held that a decree of

mandatory injunction as claimed was liable to be granted.

8. The substantial questions of law on which this

appeal was admitted are essentially whether a mandatory

injunction claimed by the respondent is one disguising a decree

for specific performance of the contract and if at all, a suit for

mandatory injunction is maintainable, could there be such a

decree in the suit before payment of the balance sale

consideration. Another question mooted is that would not the

failure on the part of the appellant to join for submitting an

application before the Director of Public Instructions amount to

anticipatory breach necessitating seeking a decree for specific

performance. If the answer to the last question is positive,

claim for a decree of mandatory injunction may not survive.

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9. The learned counsel appearing for the appellant

raised a plea of non-joinder of the Director of Public

Instructions as a party to the suit and contention with

reference to Section 6 of the Kerala Education Act. Section 6

prohibits sale, mortgage, lease, pledge, charge or transfer of

possession of any property of an aided school except with the

permission of the authorised officer. Here, the transfer

contemplated by Ext.A1 is not merely the property of the

school, but the school as such; the land and the management

together. This question was considered in detail by a Division

Bench of this Court in Roopa A.K [2014 (1) KLT 483].

10. In fact, a learned Single Judge in Koyyode

Madrassa U.P School v. Director of Public Instructions

[2011 (1) KLT 150] took the view that previous permission

of the Director is not required before making the transfer, if

the transfer is of a running school with its management.

Previous permission of the Director can be granted even after

the transfer of ownership. In appeal, a Division Bench held

that view to be incorrect and the Apex Court did not entertain

R.S.A.No.259 of 2021

a Special Leave Petition filed in that matter. Taking that into

account the Division Bench in Roopa A.K [2014(1) KLT

483] held that prior permission is required for the transfer. It

was held that:

"Even though we agree with the contention that prior permission is required before transfer, we have not been told as to how the transfer has adversely affected the interest of anyone concerned or of the Government. Obviously, no qualification is prescribed under the KER for the manager of the school.

However, if transfer of management affects the student community or the teachers or staff, certainly it is for the D.P.I. to decline transfer and take appropriate steps permissible under the Act. In this case the State or its agencies have not told us as to how the second respondent is not eligible to manage the school or whether he has any disqualification to the knowledge of the appellant. All what is said is that the approval could be considered for transfer by the D.P.I. after the first respondent effected the transfer in favour of the second respondent. We do not think anything illegal in the judgment because, since transfer has taken place three years back and the school continues to be an aided school, it is for the D.P.I. to consider whether transfer could be approved after the first respondent physically transferred the

R.S.A.No.259 of 2021

management of the school. However, if does not approve the transfer for valid reasons, it is for him to take appropriate action against the past or present management or other remedial measures provided under the KER." (Underline supplied)

11. After extracting the said observation, the Division

Bench In Roopa A.K [2014 (1) KLT 483] held that Section

6 of the Education Act does not interdict if the transfer is of a

school as such; the ownership and the management together.

13. The learned counsel appearing for the appellant by placing

reliance on Atma Ram v. Charanjit Singh (AIR 2020 SC

3413) submitted that in the nature of the agreement in

Ext.A1, the respondent should have claimed a decree for

specific performance. In the said case, the dispute was with

respect to an agreement for sale of an immovable property.

The buyer brought the suit claiming a decree of mandatory

injunction directing the seller to receive the balance sale

consideration and execute a document of transfer. The seller

raised the question of maintainability of the suit for

mandatory injunction instead of specific performance. The

R.S.A.No.259 of 2021

trial Court, however, allowed the buyer to pay the court fees

required to be paid in a suit for specific performance and

proceeded to grant a decree. The question before the Apex

Court was when a decree of specific performance was the

appropriate relief, could the suit couching it as one for a

mandatory injunction be entertained by permitting the buyer

to pay the deficit court fees. It was contended based on

Section 149 of the Code of Civil Procedure that once the court

fees is allowed to be paid, it will relate back to the date of

institution of the suit and hence the suit would be

maintainable. It was also contended that the question of

limitation should be reckoned with in such a case as on the

date of institution of the suit. The Apex Court did not accept

the said contentions. It was held that even assuming that an

amendment was there to include a relief of specific

performance with supporting averments, the period of

limitation could be reckoned with reference to the date of the

amendment and the amendment does not relate back to the

date of institution of the suit. In that case, the suit was found

R.S.A.No.259 of 2021

to be filed beyond the period of three years from the date of

agreement and hence the suit, at any rate, was barred by the

law of limitation. The facts of the said case have no similarity

to the facts of this case. The questions involved herein are

also different. Therefore the said decision does not have

application to this case.

12. The learned Senior Counsel appearing for the

respondent would submit that the conditions in Ext.A1

agreement are devised in such a way that the question of

specific performance does not arise so long as permission for

the transfer of the management is accorded by the Director of

Public Instructions. The specific stipulation in Ext.A1 in

paragraph No.5 is that a joint application has to be submitted

and after six months of according permission to transfer the

school management by the Director of Public Instructions, the

respondent has to make payment of the balance sale

consideration. Since the execution of a sale deed is envisaged

only at that stage, the cause of action for instituting a suit for

specific performance is quite premature. The learned Senior

R.S.A.No.259 of 2021

Counsel highlighted the said premises to justify the decree of

mandatory injunction granted by the courts below.

13. The procedure for change of management

together with ownership of a school is regulated by Rule 5A in

Chapter III of the Kerala Education Rules. It reads;

"5A. Change of management involving change of ownership.- (1) Notwithstanding anything contained in these rules, no change of Management of any aided school involving change of ownership shall be effected except with the previous permission of the Director. The Director may grant such permission unless the grant of such permission will, in his opinion, adversely affect the working of the institution and the interests of the staff and the person to whom the Management is transferred.

(2) Any person aggrieved by an order under sub-rule (1) may, within 30 days from the date of the receipt of the order, prefer an appeal to the Government. (3) In the case of change of management of a school involving change of ownership the new Manager of a corporate or an individual Educational Agency, shall be bound to absorb any member who is a claimant under rule 51 A of Chapter XIV A or is eligible for protection belonging to teaching and non-teaching staff of any school of the transferor manager, against the vacancies that may arise in the school."

R.S.A.No.259 of 2021

14. As pointed out above, execution of Ext.A1,

payment towards advance sale consideration of

Rs.1,26,50,000/- (Rupees one crore, twenty six lakhs and

fifty thousand only) and that the balance sale consideration

is Rs.63,50,000/- are admitted facts. The appellant does

not defy or refuse to perform the contract contained in

Ext.A1. His contention is only that respondent is obliged to

pay the entire balance sale consideration of Rs.63,50,000/-

(Rupees Sixty three lakhs fifty thousand only) before

submission of a joint application for change of management

and ownership. The question immediately arises is whether

the law contemplates that the transfer of ownership of

the school shall precede the permission of the Director of

Public Instructions for the change of management of the

school.

15. Of course, going by the stipulations in Ext.A1, the

appellant and the respondent should submit a joint application

for change of management before the Director of Public

Instructions. After obtaining sanction alone, arises the

R.S.A.No.259 of 2021

obligation on the part of the respondent to make payment of

the balance sale consideration and to take the sale deed. A

period of six months is fixed for such performance also. The

learned counsel appearing for the appellant would submit that

since the transfer of ownership shall precede the change of

management, and the suit without including a relief of specific

performance finally forecloses the right of the respondent to

claim such a relief.

16. The Apex Court in Virgo Industries (Eng.)

Private Limited v. Venturetech Solutions Private Limited

[(2013) 1 SCC 625] held that where a plaintiff being

entitled to more than one relief on a particular cause of

action, omits to sue for all such reliefs, the plaintiff is

precluded from bringing a subsequent suit to claim the relief

earlier omitted except in a situation where leave of the Court

had been obtained. The learned Counsel appearing for the

appellant placed reliance on that principle of law to fortify his

contention the the present suit without including a relief of

specific performance is not maintainable.

R.S.A.No.259 of 2021

17. In Virgo Industries (Eng.) Private Limited

[(2013) 1 SCC 625] the Apex Court further held as follows:

"A suit claiming a relief to which the plaintiff may become entitled at a subsequent point of time, though may be termed as premature, yet, cannot per se be dismissed to be presented on a future date. There is no universal rule to the above effect inasmuch as 'the question of a suit being premature does not go to the root of the jurisdiction of the Court' as held by this Court in Vithalbhai (P) Ltd. v. Union Bank of India [(2005) 4 SCC 315]. In the aforesaid case this Court has taken the view that whether a premature suit is required to be entertained or not is a question of discretion and unless 'there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event', the Court must weigh and balance the several competing factors that are required to be considered including the question as to whether any useful purpose would be served by dismissing the suit as premature as the same would entitle the plaintiff to file a fresh suit on a subsequent date. We may usefully add in this connection that there is no provision in the Specific Relief Act, 1963 requiring a plaintiff claiming the relief of specific performance to wait for expiry of the due date for performance of the agreement in a situation where the defendant may have made his intentions clear by his overt acts."

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18. In view of the said principle it may be said that

even if the suit is premature that may not absolve the plaintiff

from adding the relief ought to have been sought for, lest the

bar under Order II, Rule 2 of the Code would be attracted.

But, in this case, the cause of action to ask for a sale deed

would arise only after getting permission from the Director of

Public Instruction. Therefore, applying the said principle also it

cannot be said that the respondent should have asked for a

decree directing execution of the sale deed also in this suit.

The next question arises is, whether the conditions agreed to

between the parties in Ext.A1 that the sale deed shall be

executed after getting permission from the Director of Public

Instruction only is against the provisions of law, namely, Rule

5A in Chapter III of the Kerala Education Rules.

19. The Division Bench in Roopa A.K [2014 (1) KLT

483] held that the provisions of Rule 5A in Chapter III of the

Kerala Education Rules prohibits change of management

involving a change of ownership of an aided school unless

previous permission of the Director of Public Instructions is

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obtained, The Rule further insists that such permission may

be granted unless the grant of such permission adversely

affects the working of the institution and the interest of the

staff and the transferee. It follows that the Director of Public

Instructions should be satisfied that permission, if granted,

would not adversely affect the working of the institution and

the interest of the staff and the transferee. Obviously, such

satisfaction should be arrived at on an objective consideration.

20. Going by the principle laid down in Roopa A.K

[2014 (1) KLT 483] it is not mandatory that the sanction of

the Director of Public Prosecution shall precede the permission

by the Director of Public Instructions to change the

management. Even if the ownership is transferred before the

change of management, that does not interdict the provisions

of Rule 5A in Chapter III of the Kerala Education Rules. When

the law says so, the agreement between the parties in Ext A1

cannot have dominance over the said stipulations of the law.

Further, a decision on the change of management of the

school is solely in the province of the Director of Public

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Instruction. He is obliged to take a decision in that matter

after considering all the factors that might affect working of

the institution and the interest of the staff and the person to

whom the management is proposed to be transferred. The

occasion for such consideration would arise only when an

application for change of management is submitted in

compliance of Rule 5A in Chapter III of the Kerala Education

Rules. Taking all such matters into account, I am of the view

that the Director of Public Instructions while considering the

application for transfer of the managership shall decide

whether change of ownership of the school shall be completed

before grant permission for the change of the management.

Viewed so, the cause of action for asking a decree for

execution of the sale deed in terms of Ext.A1 agreement has

not arisen. It follows that the decree of mandatory injunction

granted by the courts below cannot be said to be incorrect.

21. It is seen from paragraph No.4 in the plaint that

the change of management of the school from Smt.Nafeesu to

the respondent was ordered by the Director of Public

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Instructions on 25.05.2016. Whereas in paragraph No.2 of

Ext.A1, it is recited that the sale deed in respect of the school

was executed by Smt.Nafeesu in favour of the respondent in

2013. It would show that, practically, nothing prevents the

transfer of ownership of the school before granting permission

by the Director of Public Instructions to change of

management.

22. A decree of mandatory injunction is an equitable

remedy. While granting such a remedy the interest of the

other side shall also be protected. It is more so when such

other party does not dispute the agreement, receipt of

advance sale consideration and also does not defy to execute

the sale deed, subject only to the payment of the balance sale

consideration. The decree granted by the trial Court which

stands affirmed by the Lower Appellate Court, therefore,

requires modification to the effect that the respondent shall

deposit the balance sale consideration of Rs.63,50,000/-

before the Munsiff's Court, Manjeri and once such deposit is

made, the appellant within one month shall sign and handover

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all necessary papers for submission of a joint application for

change of management of the school in question.

23. The second Appeal is disposed of accordingly. The

suit stands decreed as indicated above. The parties shall work

out their remedies flowing from this decree by approaching

the Munsiff's Court, Manjeri and seek performance of the

remaining part of the contract, if required, by approaching the

appropriate court at appropriate time.

Sd/-

P.G. AJITHKUMAR, JUDGE pv/dkr