Code of Civil Procedure, 1908 – s.149; Or. VI, r.17 – Respondent agreed to sell immovable property to petitioner under an agreement entered in 1994 – Earnest money was paid – Petitioner issued legal notice in 1996 claiming that when the date fixed for specific performance (07.10.96) arrived, the respondent disclosed about the pendency of some civil litigation with a third party, as an impediment for execution of sale deed – Petitioner filed suit in 1999 for mandatory injunction – Respondent sought its dismissal on the ground that said suit was not maintainable for enforcing specific performance of an agreement of sale – Trial Court directed the petitioner to pay requisite court fee to overcome said technical objection – Petitioner paid deficit court fee – Trial court decreed the suit – Upset by First Appellate Court – Confirmed by High Court – Held: If the suit was actually one for specific performance, the petitioner ought to have at least valued the suit on the basis of sale consideration mentioned in the agreement – But he did not – If the suit was only for mandatory injunction (which it actually was), only recourse open to the petitioner was to seek an amendment u/Or. VI, r.17 – If such an application had been filed, it would have either been dismissed on limitation or even if allowed, the prayer for specific performance, inserted by amendment, would not have been, as a matter of course, taken as relating back to the date of the plaint – Thus, a short-cut was found by the petitioner to retain the plaint as such, but to seek permission to pay deficit court fee, as though what was filed in the first instance was actually a suit for specific performance – Such dubious approach should not be allowed especially in a suit for specific performance, as the relief of specific performance is discretionary u/s.20, 1963 Act – Trial Court, by a convoluted logic, chose to treat the suit as one for specific performance and permitted the petitioner to pay deficit court fee – High Court’s approach in non suiting the petitioner on ground of limitation, despite the original defect having been cured and the same having attained finality, may be faulty – But the petitioner should not be allowed to take its advantage by taking shelter u/s.149 especially when he filed the suit (after more than three years of the date fixed under the agreement) only as one for mandatory injunction, valued the same as such and paid court fee accordingly, but chose to pay proper court fee after being confronted with an application for the dismissal of the suit – First Appellate Court rightly reversed the decree of specific performance granted by Trial Court – High Court right in upholding the same – Specific Relief Act, 1963 – ss.16(c), 20.
Dismissing the Special Leave Petition, the Court HELD: 1.1 It is true that Section 149 CPC confers a discretion upon the Court to allow a person, at any stage, to pay the whole or part of the court fee actually payable on the document, but which has not been paid. Once the Court exercises such a discretion and payment of court fee is made in accordance with the said decision, the document, under Section 149, shall have the same force and effect as if such fee had been paid in the first instance. But in this case, the question was not merely one of limitation. The relief sought in the plaint as it was originally presented, was for a mandatory injunction to direct the respondent to receive the balance sale consideration and to get a document of transfer effected in favour of the petitioner. The petitioner/plaintiff was obviously conscious of the nature of the relief prayed for by him. This is why he valued the relief claimed in the suit at Rs. 250/- and paid a fixed court fee of Rs. 25/-. Instead of addressing the issue as to whether the petitioner could indirectly seek specific performance of an agreement of sale, by couching the relief as one for mandatory injunction and paying a fixed court fee as payable in a suit for mandatory injunction, the Trial Court, by a convoluted logic, chose to treat the suit as one for specific performance and permitted the petitioner to pay deficit court fee. As a matter of fact, if the suit was actually one for specific performance, the petitioner ought to have at least valued the suit on the basis of the sale consideration mentioned in the agreement. But he did not. If the suit was only for mandatory injunction (which it actually was), the only recourse open to the petitioner was to seek an amendment under Order VI, Rule 17 CPC. If such an application had been filed, it would have either been dismissed on the ground of limitation or even if allowed, the prayer for specific performance, inserted by way of amendment, would not have been, as a matter of course, taken as relating back to the date of the plaint. Therefore, a short-cut was found by the petitioner/plaintiff to retain the plaint as such, but to seek permission to pay deficit court fee, as though what was filed in the first instance was actually a suit for specific performance. Such a dubious approach should not be allowed especially in a suit for specific performance, as the relief of specific performance is discretionary under Section 20 of the Specific Relief Act, 1963. [Paras 5-7][703 G-H; 704 A-H; 705 A-C]
K.Raheja Constructions Ltd. v. Alliance Ministries (1995) Suppl. 3 SCC 17 : [1995] 3 SCR 960; Tarlok Singh v. Vijay Kumar (1996) 8 SCC 367 : [1996] 3 SCR 879; Van Vibhag Karamchari Griha Nirman
Sahkari Sanstha Maryadit v. Ramesh Chander (2010)
14 SCC 596 : [2010] 12 SCR 1045 – referred to.
1.2 It may be true that the approach of the High Court in non suiting the petitioner/plaintiff on the ground of limitation, despite the original defect having been cured and the same having attained finality, may be faulty. But the petitioner would not be allowed to take advantage of the same by taking shelter under Section 149 CPC, especially when he filed the suit (after more than three years of the date fixed under the agreement of sale) only as one for mandatory injunction, valued the same as such and paid court fee accordingly, but chose to pay proper court fee after being confronted with an application for the dismissal of the suit. Clever ploys cannot always pay dividends. The fact that the petitioner chose to issue a legal notice dated 12.11.96 and the fact that the petitioner created an alibi in the form of an affidavit executed before the Sub-Registrar on 7.10.1996 (marked as Exhibit P-2) to show that he was present before the Sub-Registrar for the purpose of completion of the transaction, within the time stipulated for its performance, was not sufficient to conclude that the petitioner continued to be ready and willing even after three years, on 13.10.1999 when the plaint was presented. No explanation was forthcoming from the petitioner for the long delay of three years, in filing the suit (on 13.10.1999) after issuing a legal notice on 12.11.1996. The conduct of a plaintiff is very crucial in a suit for specific performance. A person who issues a legal notice on 12.11.1996 claiming readiness and willingness, but who institutes a suit only on 13.10.1999 and that too only with a prayer for a mandatory injunction carrying a fixed court fee relatable only to the said relief, will not be entitled to the discretionary relief of specific performance. The first Appellate Court rightly reversed the decree of specific performance granted by the Trial Court and the High Court was right in upholding the judgment of the first Appellate Court. [Paras 8-10][705 A-H;
706 A-C]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.