Gujarat High Court
Mohammadali Mohammadhusen Gandhi vs Hurbanu Wd/O Decd. Gulammohiyuddin … on 15 April, 2025
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Reserved On : 24/02/2025
Pronounced On : 15/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 61 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/APPEAL FROM ORDER NO. 61 of 2024
With
R/APPEAL FROM ORDER NO. 63 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/APPEAL FROM ORDER NO. 63 of 2024
With
R/APPEAL FROM ORDER NO. 64 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/APPEAL FROM ORDER NO. 64 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
==========================================================
Approved for Reporting Yes No
✓
==========================================================
MOHAMMADALI MOHAMMADHUSEN GANDHI
Versus
HURBANU WD/O DECD. GULAMMOHIYUDDIN MOHAMMADHUSEN
AFINWALA & ORS.
==========================================================
Appearance:
MR NV GANDHI(1693) for the Appellant(s) No. 1
MR ARSHAD SHAIKH(11761) for the Respondent(s) No. 10,11,12,9
MR VISHAL C MEHTA(6152) for the Respondent(s) No. 1,2,3,4,5,6,7
NOTICE SERVED BY DS for the Respondent(s) No. 8
==========================================================CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
COMMON CAV JUDGMENT
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1. Admit. Learned advocates Mr. Vishal C. Mehta and Mr.
Arshad Shaikh waives service of notice of admission of appeals
on behalf of respective respondents. Respondent No.8 though
served chosen not to appear, otherwise his presence would not
requires for adjudication of these appeals. With the consent of
learned advocates appearing for respective parties, appeals
were heard finally.
2. The present appeals are filed under Order XLIII Rule (1)
(r) of the Code of Civil Procedure, 1908 (hereinafter referred to
as “the CPC“), challenging the common order passed below
Exh.5, 15 and 59 dated 19.03.2024 by the 5th Additional
Senior Civil Judge, Ahmedabad (Rural) in Special Civil Suit
No.181 of 2021, which were filed for temporary injunction
against defendant nos.1 to 7, mandatory injunction (restoration
of possession) and temporary injunction against the defendant
nos.9 to 12 respectively.
2.1 As far as possible, the parties will be referred to as per
their original position before the Trial Court.
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3. The short facts of the case, which are necessary to resolve
the controversy involved in the present appeals, need to be
mentioned, which are as under:
3.1 The appellant herein is the original plaintiff, who has filed
Special Civil Suit No.181 of 2021 against the respondents –
defendants before the Court of 5th Additional Senior Civil
Judge, Ahmedabad (Rural).
3.2 The disputed suit property is situated at Block/Survey
No.726+729 paiki Hissa No. 1/G/3, F.P. 76/1 paiki,
admeasuring 2778 sq. Mtrs. land (Non-Agricultural) at Mouje
Village: Vejalpur, District: Ahmedabad (hereinafter referred to
as “Suit Property”).
3.3 The plaintiff entered into a Notarized Samjuti
Karar/Banakhat (hereinafter referred as “Agreement for sale”)
with Gulammohiyuddin M. Afinwala, Iqbalhussain M. Afinwala
(defendant no.4) and Mukhtiyarhussain M. Afinwala (defendant
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no.6) (herein after referred as “executors”) in relation to suit
property on 06.02.2018 for the total consideration of Rs.12
Crore relying upon their representation in relation to their
exclusive ownership and rights over the suit property. The
aforesaid persons are real brothers.
3.4 It is worth to note that wives of aforesaid persons are also
co-owners of the suit property. Gulammohiyuddin M. Afinwala,
who died prior to filing of suit is being represented through
his wife and two daughters, who joined as defendant nos.1, 2
and 3 respectively. Whereas wives of Iqbalhussain M. Afinwala
(defendant no.4) and Mukhtiyarhussain M. Afinwala (defendant
no.6) are joined as defendant nos.5 and 7 respectively. Thus,
the defendant Nos.1 to 7 are original owners of suit property.
3.5 According to the terms & conditions, before executing the
aforesaid agreement for sale, the Plaintiff has handed over
Rs.15 Lakhs by cheque no.866427 dated 06.01.2018 drawn on
SBI, Ambawadi Branch, Ahmedabad and further paid Rs. 5
Lakhs by cash in installments and thus, he has paid total
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amount of Rs.20 Lakhs at the time of executing the aforesaid
agreement for sale. The said cheque was duly credited in the
Defendant’s bank account.
3.6 That, at the time of executing the said agreement for sale,
the Defendants have provided the copy of 7/12 village form of
the suit property to the plaintiff, wherein names of Defendant
Nos.1, 5 & 7 have been mentioned along with the names of
executors (Gulammohiyuddin Mohammadhusen Afinwala
(Deceased), Defendant Nos.4 and 6) in the capacity of co-
owners. Thereafter, it has been alleged that the executors had
handed over the possession of the suit property and after
receipt of physical possession of the said suit property, the
plaintiff deployed his security guard and also constructed small
room for the purpose of his stay during day time and he had
also constructed compound wall situated towards main highway
i.e. on the southern side of the suit property, which was
earlier demolished by the Ahmedabad Municipal Corporation
(hereinafter referred to as “AMC”).
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3.7 As per the terms and conditions of the said agreement for
sale, it was for the defendant Nos.1 to 7 who were required to
determine and acquire proportionate area of final plot from the
competent authority and to obtain revised plan after de-
marking the area of suit property as the suit property had
been shown as parking and common plot as per the sanctioned
plan of the Amenakhatun Hospital.
3.8 Thereafter, on 02.04.2018, an application along with the
documents submitted for opinion of the City Planning and T.P.
Department made by the plaintiff on behalf of the Defendants
and Mohammed Charity Trust and further paid an amount of
Rs. 40 lakhs in favour of executors [defendant nos.4, 6 and
deceased – Gulammohiyuddin Mohammandhusen Afinwala
(husband of the defendant no.1 and father of defendant nos.2
and 3]. It is also the case of the plaintiff that to expedite the
process, he has appointed Consultant – Shri Asip Raiwala and
on 02.04.2018, commenced the process of revised development
permission.
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3.9 On 19.02.2019, after receipt of part sale consideration of
Rs.60 lakhs, a notarized Supplementary agreement (hereinafter
as “Supplementary agreement”) in pursuant to the
aforementioned agreement dated 06.02.2018, was executed
between the plaintiff and executors [Late Gulammohiyuddin M.
Afinwala, Iqbalhussain M. Afinwala (defendant no.4) and
Mukhtiyarhussain M. Afinwala (defendant no.6)].
3.10 It is the case of the plaintiff that when he requested the
defendants to give their signatures and authority letter for the
purpose of undertaking further process of revised development
plan but instead of giving their signatures and getting authority
letter from the office bearers of the Hospital, the executors –
signatory to the agreement for sale had given proposal to carry
out development over the suit property under their partnership.
3.11 Thereafter, as the executors are backing out from their
obligation, on 14.12.2020, the plaintiff has forwarded a letter
to the Signatory to the agreement for sale to discharge their
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obligations i.e., demarcating and acquiring proportionate area
of final plot from competent authority, getting consent of office
bearers of the Hospital and revised construction plan to the
corporation etc. and executors had sent their reply on
30.12.2020, thereby, cancelled the agreement for sale and
inclined to refund the amount of Rs.60,00,000/- with
reasonable profit i.e., as per bank rate and so requested the
plaintiff to give his bank details. The plaintiff has also served
a rejoinder letter dated 05.01.2021 issued from U.S.A. thereby,
rebutting all the allegations made in the aforesaid letter dated
30.12.2020 issued by executors.
3.12 It is the case of plaintiff that the defendants – original
owners have published a Notice for title clearance certificate in
Divya Bhaskar on 24.04.2021 and Gujarati Daily Gujarat
Samachar on 27.01.2021 through M/s Lakhani-Gandhi &
Solicitor, Advocate and Notary i.e., a public notice with an
intention to transfer the same in favour of defendant no.8.
3.13 Thereafter, the plaintiff has submitted his strong objections
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against the said public notice and upon notice of the said
objections, the defendants have orally given assurance to the
plaintiff that they will not transfer and alienate the suit
property in favour of defendant no.8 and the defendants are
ready and willing to execute the registered sale deed in
relation to the suit property to the plaintiff but no action has
been taken by the defendants in regard to execution of
registered sale deed.
3.14 The plaintiff has also served a legal notice upon Signatory
to the agreement for sale on 19.01.2021 and after about 6
months, on 03.07.2021, the executors have taken a
contradictory stand.
3.15 Under the aforesaid circumstances, the plaintiff was
compelled to file the Special Civil Suit in the Court of Learned
Principal Senior Civil Judge, Ahmedabad (Rural) against the
respondent nos. 1 to 8 seeking decree of specific performance
of sale contract and permanent injunction. The Plaintiff has
also filed 2 applications (first) at Exh.5 under Order XXXIX
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Rule 1(2) of C.P.C seeking temporary injunction pending the
suit and another application at Exh. 18 under Order XXVI Rule
9 of C.P.C for local investigation.
3.16 It is the case of the plaintiff that some unknown persons
demolished the said room and driven out the security deployed
by the plaintiff from the suit property and threatened him,
thereby, illegally taken away the physical possession from the
custody of the plaintiff. Under such circumstances, the plaintiff
has filed an application below Exh.15 for mandatory
injunctions (restoration of possession).
3.17 During the pendency of the aforesaid suit, the defendant
nos.1 to 7 had entered into development agreement on
21.09.2022, in favour of defendant nos.9 to 12 and thus, the
defendant no.9, a partnership firm and their partners i.e.,
defendant nos.10 to 12 have been impleaded as party and
moreover, the plaintiff has also filed an application for
temporary injunction below 59 against the defendant nos.9 to
12 respectively.
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3.18 The Defendants have filed an application under Order VII
Rule 11 of CPC, which was dismissed by the Trial Court vide
its order dated 22.08.2023.
3.19 Furthermore, it is the case of the plaintiff that defendants
have also filed a Civil Revision Application no. 13 of 2024
before this Court, which had been dismissed by this Court vide
its order dated 08.02.2024.
3.20 It is also the case of the plaintiff that initially, AMC
demanded Rs.67,62,900/- as betterment charges and
Rs.1,81,66,500/- for development permission vide its
communication letter dated 01.04.2019. Whereas, AMC issued
letter dated 20.05.2021 demanded payment of Rs.2,49,29,400/-
as betterment charges, Rs.2,79,04,800/- towards chargeable
FSI, which was paid by the defendant Nos.9 to 12 on
13.07.2021 and in year 2022 respectively but the plaintiff has
not been informed about these letters by the defendants.
Likewise, during pendency and till disposal of injunction
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application, defendant No. 9 to 12 has already incurred
expenses of Rs.2,19,51,580/- towards construction expenses and
Rs.2,63,49,455 towards other construction expenses thereby
around spent Rs. 10,11,35,2235/ on the project.
3.21 After hearing the parties, the Trial Court vide its order
dated 19.03.2024 has rejected the said applications filed below
Exh.5, 15 and 59.
4. Being aggrieved and dissatisfied with the common order
below Exh.5, 15 and 59 dated 19.03.2024 passed by 5th
Additional Senior Civil Judge, Ahmedabad (Rural) in Special
Civil Suit No.181 of 2021, which were filed for temporary
injunction against defendant nos.1 to 7, Mandatory injunction
(restoration of possession) and Temporary injunction against
the defendant nos.9 to 12 respectively and hence, the present
Appeal from Orders are filed.
5. Heard learned Senior Counsel Mr. Percy Kavina with learned
advocate Mr. N. V. Gandhi for the appellant – original
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plaintiff, learned Senior Counsel Mr. Mehul S. Shah with
learned advocate Mr. Vishal C. Mehta for the respondent Nos.1
to 7 – original defendant Nos. 1 to 7 and learned advocate
Ms. Megha Jani with Mr.Arshad Shaikh for the respondent
Nos. 9 to 12 – original defendant Nos. 9 to 12.
6. SUBMISSION OF APPELLANT – PLAINTIFF
6.1 Learned Senior Counsel Mr. Percy Kavina with learned
advocate Mr. N.V.Gandhi, would submit that once the Trial
Court has held that there is a prima-facie case in favour of the
plaintiff, it ought to have granted ad-interim injunction in
favor of Plaintiffs.
6.2 Learned Senior Counsel Mr. Kavina would further submit
that the reliance placed by the Trial Court on the judgment in
case of Dalpatkumar versus Prahlad Singh reported in (1992) 1
SCC 719 while denying the temporary injunction is misplaced,
as the ratio of the said judgment is not applicable to the facts
of the present case.
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6.3 Learned Senior Counsel Mr. Kavina would further submit
that plaintiff was always ready and willing to perform his part
of contract, which is confirmed from various letters issued by
plaintiff to the executors, who have failed to perform their
part of agreement. Once, the Trial Court having found prima
facie case in favour of the plaintiff and is ready and willing to
perform his part of contract, balance of convenience and
irreparable loss ought to have been observed in favour of
plaintiff rather than defendants.
6.4 Learned Senior Counsel Mr. Kavina would further submit
that the executors, knowing fully well that they are not only
owners of suit property despite that the plaintiff was made to
believe that they are the only owners, whereby, the plaintiff
has entered into agreement for sale with them. In such a case,
defendants (executors) who are signatory to agreement for sale,
who acted dishonestly, not entitled to get any relief /
protection from Court of law.
6.5 Learned Senior Counsel Mr. Kavina would further submit
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that considering correspondence between the plaintiff and
signatory to agreement for sale, all other co-owners of suit
property were aware about such agreement, thereby, balance
of convenience and irreparable loss, in fact, was in favour of
plaintiff rather than defendants.
6.6 Learned Senior Counsel Mr. Kavina would further submit
that by filing common written statement, defendant nos. 1 to 7
cannot disown their obligation to perform their part of
obligation as per agreement for sale.
6.7 Learned Senior Counsel Mr. Kavina would further submit
that there is nothing on record to show that at the given point
of time, the defendants nos.1 to 7 have ever informed to the
plaintiff about the letter dated 01.04.2019 issued by the AMC,
thereby, not put the same to the notice of the plaintiff to pay
betterment charges. As such, plaintiff was and is ready and
willing to perform his part of agreement and having sufficient
money to pay the amount, which had been demanded by
AMC.
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7. SUBMISSION OF THE RESPONDENTS No.1 to 7-
DEFENDANTS No. 1 to 7
7.1 Learned Senior Counsel Mr. Mehul S. Shah with learned
advocate Mr.Vishal C. Mehta would submit that executors –
signatories to agreement for sale never suppressed the fact that
there are no other co-owners of suit property as alleged. As a
matter of course, the plain reading of para-2 of plaint, suit
notice as well as agreement for sale itself would indicate that
it was within the knowledge of plaintiff that there were other
co-owners of suit property.
7.2 Learned Senior Counsel Mr. Shah would submit that
plaintiff was required to spend around Rs.4 crore as per
agreement for sale and as per the plaint and the documents
submitted by plaintiff, nowhere it has been shown that plaintiff
was/is having the capacity to incur such expenses.
7.3 Learned Senior Counsel Mr. Shah would further submit that
plaintiff has not prayed for appointment of court commissioner
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at the first instance while filing suit, but after some passage of
time, requested for appointment of court commissioner,
wherein in Panchnama drawn on 04.11.2021, a possession of
defendant no.6 has been clearly established. Furthermore, at no
point of time, plaintiff was put in possession as alleged. Thus,
relief as prayed for at Exh.15 and part relief of Exh.59 would
not survive and correctly rejected by Trial Court.
7.4 Learned Senior Counsel Mr. Shah would further submit that
agreement for sale was signed by only three co-owners of suit
property and consent of other co-owners i.e., defendant nos.1,
5 and 7 were required for its performance, who having not
agreed to sell the suit property in favour of plaintiff, such an
agreement for sale cannot be put to performance by plaintiff
being contingent contract.
7.5 Learned Senior Counsel Mr. Shah would submit that in the
facts of the present case, agreement for sale is required to be
considered as a contingent contract and as its conditions are
not fulfilled, it is not enforceable. He would rely upon the
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provisions of sections 31 and 32 of Contract Act.
7.6 Learned Senior Counsel Mr. Shah would further submit that
when there is no conflict of interest between defendants nos.1
to 7, thereby, they have filed common written statement,
which would not prejudice the rights of all the owners to
defend the suit. Merely filing the common written statement
would not, ipso facto, give the plaintiff the right to seek the
performance of the agreement for sale, which is otherwise a
contingent contract, if not observed it then, provisions of
contract act, would become otiose and nugatory.
7.7 Learned Senior Counsel Mr. Shah would further submit that
when all owners of suit property are not signatory to
agreement for sale, it would be a void contract at the instance
of non-signatory to the agreement for sale and it cannot be
enforceable in law in view of Section 17 of Specific Relief Act.
7.8 Learned Senior Counsel Mr. Shah would further submit that
plaintiff is asking for performance of entire suit property and
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not even alternatively prayed for 50% of suit property as
undisputedly, only three co-owners of suit property were
signatories to agreement for sale and in view of such fact, no
relief can be granted in favour of plaintiff.
7.9 Learned Senior Counsel Mr. Shah would further submit that
plaintiff has not asked for any refund or damages in the prayer
clause of the suit, question of refund of earnest money would
not arise, especially, when agreement for sale is already
cancelled.
7.10 Learned Senior Counsel Mr. Shah would further submit
that plaintiff has not amended its prayer, thereby, not
challenge the development agreement, which entered between
defendants nos.1 to 7 with defendant nos.9 to 12 and so also,
not seeking any possession of suit property from defendant nos.
9 to 12 in the plaint, then in absence of such prayers made in
the plaint, injunction, as sought for, cannot be granted, which
is correctly refused by Trial Court.
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7.11 Learned Senior Counsel Mr. Shah would further submit
that without amending prayer in the plaint, despite subsequent
event taken place, during the pendency of the suit,
entertaining injunction application is nothing but an exercise in
futility.
7.12 Learned Senior Counsel Mr. Shah would further submit
that there was an inordinate delay on the part of plaintiff to
perform his part of contract, which was a ground of cancelling
the agreement for sale by signatories to agreement for sale.
7.13 Learned Senior Counsel Mr.Shah would further submit
that when the agreement for sale was already canceled vide
letter dated 30.12.2020, and the present suit was filed only on
20th July 2021, it amounts to a delay in filing the suit. Even
if the suit is filed within the period of limitation, no injunction
as prayed for can be granted in favor of the plaintiff.
7.14 Learned Senior Counsel Mr. Shah would further submit
that plaintiff failed to deposit the betterment charges, stipulated
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by AMC vide its letter dated 01.04.2019, which was well
within the knowledge of plaintiff as the consultant was
appointed by plaintiff himself, which can be easily confirmed
by reading the letter dated 14.12.2020, issued by plaintiff.
Thus, plaintiff had never fulfilled his part of obligation
stipulated in agreement for sale.
7.15 Learned Senior Counsel Mr. Shah would further submit
that during the pendency of the suit, no injunction was granted
in favour of plaintiff and having entered into development
agreement with defendant nos. 9 to 12, substantial amount has
been invested in the project and substantial portion of
construction has already been completed so far, then, balance
of convenience and irreparable loss was/is not in favour of
plaintiff, thereby, Trial Court has correctly rejected injunction
application.
8. To buttress his arguments, he is relying upon following
decisions:
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(1) Vitrang Holidays pvt. Limt Vitrang Holdings Pvt.
Ltd. Vs. Gujarat State Textile Corporation Limited
reported in 1996 (3) GLR 436 (para 8).
(2) Peemmada Prabhakar vs. Young Men’s VYSYA
Association, reported in 2015 5 SCC 355 (para 28 to
30).
(3) M.P. Housing Board vs. Anil Kumar Khiwani,
reported in 2005 10 SCC 796 (para 19).
(4) ECE Industries Limited vs. S.P. Real State
Developers Pvt. Ltd. Reported in 2009 12 SCC 776
(para 18 and 19).
9. SUBMISSIONS OF RESPONDENT NOS.9 TO 12 –
DEFENDANT NOS.9 TO 12.
9.1 Learned advocate Ms. Megha Jani appearing would submit
that the suit filed by plaintiff seeking for specific performance
is not maintainable as the agreement, against which specific
performance sought, is already cancelled by executors vide
their reply dated 30.12.2020 and such cancellation has not
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been challenged in the instant suit.
9.2 Learned advocate Ms. Megha Jani would submit that in
absence of declaratory relief to declare the termination of the
agreement of sale as bad in law, the suit for decree of specific
performance is not maintainable in law. She would strenuously
submit that despite such issue was neither pleaded in written
statements of defendants nor pressed into service before trial
Court but it is a jurisdictional issue, it can be raised by
defendants before this Court in present appeals and as per
settled legal position of law, this Court is requires to consider
and decide it.
9.3 Learned advocate Ms. Megha Jani would submit that the
agreement for sell, though pertaining to the entire suit land,
was allegedly executed by only 3 out of 6 co-owners. Since
inception, plaintiff was aware of the said fact that the suit
land was owned by six co-owners, even before execution of
the agreement for sale. Learned advocate Ms. Megha Jani
would submit that an agreement executed by only 50% of the
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co-owners cannot be specifically enforced with respect to the
whole part of the suit land against all owners.
9.4 Learned advocate Ms. Megha Jani would submit that the
plaintiff has failed to establish that the plaintiff was ready and
willing to perform its part of contract throughout. Learned
advocate Ms. Megha Jani would submit that in the present
case, an important condition of the agreement was that the
plaintiff would pay all dues and demands raised by AMC.
Though AMC raised demand of Rs.67,62,900/- as betterment
charges and Rs.1,81,66,500/- for development permission vide
its communication letter dated 01.04.2019, the plaintiff failed
and neglected to pay the said amount.
9.5 Learned advocate Ms. Megha Jani would submit that the
plaintiff has also failed to plead that it had sufficient funds or
was in a position to raise funds to discharge his obligation in
terms of the contract. Learned advocate Ms. Megha Jani would
submit that the conduct of the plaintiffs prior to and
subsequent to the filing of the suit and the surrounding
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circumstances, establish that the plaintiff was and is not ready
and willing to perform his part of the contract.
9.6 Learned advocate Ms. Megha Jani appearing for the
respondents would submit that the plaintiff has been guilty of
delay in filing the suit. Learned advocate Ms.Megha Jani would
also submit that though the AMC demanded said amount on
01.04.2019, the plaintiff took no step to pay such amount till
filing of suit. Furthermore, the fact that the demand was raised
pursuant to application dated 02.04.2018 filed by the agent of
the plaintiff, who was liaison with AMC is established on
record. So, it was well within knowledge of plaintiff about said
demand raised by AMC and having not fulfilled his part of
obligation as per terms of agreement for sale, plaintiff would
not entitled to get any injunction.
9.7 Learned advocate Ms. Megha Jani would further submit
that it was only when the original owners filed an application
dated 05.12.2020 in AMC for extension and installments of the
amount demanded by AMC then after, plaintiff issued notice
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dated 14.12.2020, making a show of willing to pay the
demand of AMC but in fact not paid. Learned advocate Ms.
Megha Jani appearing for the respondents would submit that
the executors in no time responded with their reply dated
30.12.2020 and cancelled the agreement for sale. The plaintiff
still neither filed any suit at that time nor deposited any
amount to AMC. It was only when betterment charges were
paid on behalf of the original owners on 13.07.2021 by
defendant No. 9 to 12, then the suit was filed on 20.07.2021.
Learned advocate Ms. Megha Jani appearing for the
respondents would submit that no prima case is made out by
plaintiff and a such having no case made out for grant of any
interim orders on account of delay and conduct of the plaintiff.
9.8 Learned advocate Ms.Megha Jani would submit that in
view of aforesaid submissions, the observation of the learned
judge in the impugned order in para 9.3, 10 & 17 to the effect
that the plaintiff has made out a prima facie case is erroneous.
Learned advocate Ms.Megha Jani appearing for the respondents
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would submit that it is open for the respondents to challenge
the said adverse finding in the present appeals from order,
which is permissible in law. Learned advocate Ms. Megha Jani
appearing for the respondents would place reliance under
Order XLIII Rule 2 read with Order XLI Rule 22 of CPC.
9.9 Learned advocate Ms. Megha Jani appearing for the
respondents would submit that the balance of convenience is in
favour of the defendants and the defendants would suffer
irreparable loss if any injunction is granted to the plaintiff.
Learned advocate Ms. Megha Jani would further submit that
the defendants No.9 to 12 have entered into development
agreement of the suit land after verifying that the agreement
for sale has been cancelled and that such cancellation has not
been challenged by the plaintiff in his suit and furthermore,
the plaintiff having not made any payment to AMC for a
period of almost 4 and ½ years since the signing of the
agreement for sale and so far, the defendants Nos.9 to 12 have
paid Rs.2,49,29,400/- as betterment charges, Rs.2,79,04,800/-
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towards chargeable FSI, Rs.2,19,51,580/- towards construction
expenses and Rs.2,63,49,455/- towards other construction
expenses thereby, roughly spent around more than Rs.10.0
crore and the construction as on date is going on at suit
property, by now, the defendant nos.9 to 12 have incurred
much more amount.
9.10 Learned advocate Ms. Megha Jani would further submit
that the construction, which is proposed, is of two basements,
ground floor + 12 floors. Learned advocate Ms. Megha Jani
would further submit that the construction is almost over and
third-party rights are created. She would further submit that
against the investment made by Defendant Nos.9 to 12, the
plaintiff has only paid a sum of only Rs.60 lakhs. Moreover,
the conduct of the plaintiff shows that the plaintiff just wanted
to block the land, which is worth in crores without any further
investment and having no financial capacity to pay agreed
amount as per agreement for sale.
9.11 Learned advocate Ms. Megha Jani would submit that the
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possession of the suit land is with the defendants. The
possession of the suit land was never handed over to the
plaintiff as claimed by the plaintiff. Learned advocate Ms.
Megha Jani would further submit that the supplementary
agreement does not, in any manner, record that the possession
was handed over to plaintiff. She would further point out that
the plaintiff did not even apply for appointment of a court
commissioner while filing the suit on 20.07.2021 and after
almost 3 months on 14.10.2021, an application for
appointment of court commission was made. Learned advocate
Ms.Megha Jani would submit that considering the fact that the
defendants have been in possession of the suit land all
throughout and have put up a construction of 12 floors,
therefore, no ground is made out for granting injunction in
favour of the plaintiff on the lame plea of it being in
possession.
9.12 Learned advocate Ms. Megha Jani appearing for the
respondents would submit that the agreement in question is
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dated 06.02.2018 then amendment which came into effect from
01.10.2018 in Specific Relief Act having held to be prospective
thereby, it cannot apply to those transactions that took place
prior to its coming into force. Resultantly, the suit is governed
by the unamended Specific Relief Act giving full discretion to
the court to refuse/grant of specific performance of an
agreement.
9.13 Learned advocate Ms. Megha Jani would lastly submit that
this Court while exercising its power under Order XLIII Rule 1
(r) of CPC would not substitute its own view and interfere
with the impugned order as order impugned is neither
perverse, erroneous, capricious nor arbitrary in nature nor
against any settled legal position of law. So, assuming without
admitting that merely some another view is possible, it would
not be ground to interfere with discretionary order passed by
trial court.
9.14 To buttress her arguments, she has relied upon the
following decisions.
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(i) I.S. Sikandar vs. K. Subramani reported in (2013)
15 SCC 27 (para 37 and 38);
(ii) Mohinder Kaur vs. Sant Paul Singh reported in
(2019) 9 SCC 358;
(iii). R. Kandasamy (Since Dead) & Ors. vs. T.R.K.
Sarawathy & Anr. reported in 2024 SCC OnLine SC
3377; (para 18.7, 22-25, 38, 39, 40-47);
(iv) Janardhan Das and others 2024 SCC online SC
2937 (para 2.4, 2.5, 2.7, 5.3, 7, 17, 18, 23);
(v) Saurav Jain and others reported in (2022)18 SCC
633 (Para 24-29);
(vi) Saurav Jain vs. A.B.P. Design reported in 2022 18
SCC 633; (para 24 to 29).
(vii) Ramakant Ambalal Choksi vs. Harish Ambalal
Choksi & Ors. reported in 2024 SCC OnLine SC 3538;
(para – 20 to 37)
(viii) Katta Sujatha Reddy & Anr. vs. Siddamsetty
Infra Projects Pvt. Ltd. & Ors. reported in (2023) 1
SCC 355 (48 to 57).
(ix) R. Kandasamy (Since dead) & Ors. versus. T.R.K
Sarawathy & Anr. reported in 2024 SCC Online SC
3377 : 2025 (0) AIR (SC) 44 (para 8, 22 to 24, 38 to
47).
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9.15 Making the above submissions, she would request that the
impugned order does not call for any interference at the
instance of the original plaintiff and all these appeals from
order deserve to be dismissed.
10. REJOINDER SUBMISSIONS OF APPELLANT – PLAINTIFF
10.1 Learned Senior Counsel Mr. Kavina would further submit
that on the facts at hand, from the documents produced before
the Trial Court by the rival parties, it clearly emerges that, the
defendant nos.9 to 12 are not the bona fide purchasers of the
value without notice. As per their own statements made in
their written statement and after going through the
development agreement, the defendant nos.9 to 12 have
categorically stated that they are aware of the said agreements
for sale in favour of Plaintiff. Thus, Defendant Nos.9 to 12
could not be said to be a bona fide purchasers of the value
without notice. They are merely a partners of the development
project with defendant nos.1 to 7. The said development
agreement was executed by the defendant nos.1 to 7, pending
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the suit having their financial interest, amounts to
overreaching the process of the court.
10.2 Learned Senior Counsel Mr. Kavina would further submit
that the balance of convenience cannot be said to be in favour
of Defendants merely because they spend more amount as held
by the learned Trial Court while answering issue nos. 2 and 3
of the impugned order.
10.3 Learned Senior Counsel Mr. Kavina would further submit
that, in a suit for specific performance of contract, temporary
injunction could not be denied to the plaintiff on the ground
that, the plaintiff can be compensated in terms of money.
Learned Senior Counsel Mr. Kavina would further submit that
the Hon’ble Apex Court in the matter of Maharwal Khewaji
Trust (Regd) Faridkot v. Baldev Dass reported in (2004) 8 SCC
at Pg. 488 has held that, until and unless a case of irreparable
loss or damage is made out by a party to the suit, the court
should not permit the nature of the property being changed
which also includes alienation or transfer of the property
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which may cause loss or damage to the party who may
ultimately succeed in the suit and may further lead to
multiplicity of proceedings.
10.4 Learned Senior Counsel Mr. Kavina would further submit
that the principal contentions on behalf of the defendants that,
as the defendant nos. 1, 5 & 7 are non-signatories to the
agreement for sale dated 06.02.2018 and supplementary
agreement dated 19.02.2019 and it is a contingent contract
within the meaning of Section 32 of the Contract Act, 1872
and so the suit of the plaintiff is not maintainable seeking
performance of agreement for sale is thoroughly misconceived
notion of defendants. Learned Senior Counsel Mr. Kavina
would submit that as per S. 44 of Transfer of Property Act and
settled legal position of law, co-owner can always sell his
interest/share from property and performance of such
agreement for sale can always be sought by beneficiary of
agreement i.e. purchaser as per section 13 of Specific Relief
Act, 1963.
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10.5 Learned Senior Counsel Mr. Kavina would further submit
that in view of the provisions of Section 13 (1) (b) of the
Specific Relief Act, 1963 read with recitals of the said
agreements dated 06.02.2018 and 19.02.2019 respectively read
with Section 17 of the Specific Relief Act, 1963, the judgment
in case of I.S Sikandar (D) by LRs. v. Subramaniam reported in
(2013) 15 SCC 27 would not be applicable in the facts of
present case. Learned Senior Counsel Mr.Kavina would further
submit that the non-signatories to the agreement were bound
to concur at the instance of their husbands who were
signatories to the agreements and who had represented
themselves to be the exclusive owners of the suit property.
10.6 Learned Senior Counsel Mr. Kavina would further submit
that law laid down in the judgments cited by the respondents
does not apply to the facts of the present case i.e., I.S
Sikandar (D) by LRs. (supra) has been clarified in the
subsequent judgments in the matters of A. Kantamani v.
Nasreen Ahmed reported in 2017 (4) SCC 654 and having not
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raised issue of none challenge of cancellation of agreement for
sale before trial Court either in pleading of defendants or
arguments, such issue can not be permitted to raise for first
time in present appeals.
10.7 Learned Senior Counsel Mr. Kavina would further submit
that the observations made in the judgment of R. Kandasamy
(Since dead) & Ors, (supra), that the Trial Court is required to
decide maintainability of suit under Section 9 of CPC, along
with the contentions taken on behalf of defendants would not
help the defendants as it is yet to be decided that at whose
fault agreement for sale could not be performed.
10.8 Learned Senior Counsel Mr. Kavina would further submit
that the defendant nos.1 to 7 have failed to assail the plaint in
their application preferred under Order VII Rule 11 of CPC by
taking similar contentions as has been taken in the present
case. It is pertinent to note here that, the said order of Trial
Court dismissing the application under Order VII Rule 11 of
CPC has been upheld by this Hon’ble Court by a detailed order
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dated 08.02.2024 passed in Civil Revision Application No.13 of
2024 and the same was confirmed by the Hon’ble Apex Court
vide order dated 09.04.2024 and the Special Leave to Appeal
(C) no.7870/2024 was also dismissed. Even otherwise also, the
said judgment deals with the case related to post-trial.
10.9 Learned Senior Counsel Mr. Kavina would further submit
that the objection regarding the maintainability of the suit was
never raised by the defendants in their written statement.
Learned Senior Counsel Mr.Kavina would further submit the
Hon’ble Apex Court in the matter of A. Kanthamani (supra) was
pleased to hold that, it is a well-settled principle of law that
the plea regarding the maintainability of the suit is required to
be raised in the first instance in the pleading (i.e. written
statement). In other words, if maintainability was not an issue
before the Trial Court, a suit cannot be dismissed as not
maintainable. However, the Defendants have raised this plea
for the very first time before this Hon’ble Court. Even
otherwise also, once the defendant nos. 1 to 7 have failed in
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assailing the plaint under Order VII Rule 11 of CPC, it is not
open for the defendant nos.1 to 7 to object the grant of
temporary injunction pending the suit by contending that the
suit of the plaintiff is not maintainable under Section 9 of CPC
and thus, they are not entitled to temporary injunction pending
the suit.
10.10 Learned Senior Counsel Mr.Kavina would further submit
that another principal contention that, the plaintiff is not ready
and willing to perform his part of contract as he has not
deposited the amount of betterment charges, is also
misconceived since the plaintiff was never called upon to
deposit such betterment charges with corporation. There is
nothing on record to substantiate the said contention of the
defendants. Learned Senior Counsel Mr. Kavina would further
submit that there is nothing on record to suggest that, the
defendant nos. 1 to 7 have ever called upon the Plaintiff to
deposit the amount with Corporation. Though, under the
contract, it was on the part of vendor to carryout appropriate
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procedure before corporation to amalgamate the plot of the
Hospital, with a view to expedite the procedure, the Plaintiff-
Vendee at his own cost appointed consultant which can be
seen from the letters produced vide Exh. 79. However, when
the Plaintiff was not handed over the letter received from the
corporation to enable him to deposit betterment charges, he
wrote letter dated 14.12.2020.
10.11 Learned Senior Counsel Mr. Kavina would further submit
that when the Plaintiff has received false reply to the said
letter on 30.12.2020, he has given response on 04.01.2021
followed by legal notice dated 19.01.2021, which was
responded by the Defendant nos.1 to 7 after long time on
03.07.2021.
10.12 Learned Senior Counsel Mr. Kavina would further submit
that on the same day i.e., on 03.07.2021, the Defendant Nos.9
to 12 have claimed to deposit the money with Corporation i.e.,
AMC. Before that, the Defendant nos.1 to 7 has made an
attempt to transfer the suit property to defendant no.8.
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However, in view of the objections of the plaintiff, title
clearance certificate was not issued.
10.13 Learned Senior Counsel Mr. Kavina would further submit
that the materials on record reads with averments made in
application at Exh.15, it could not be disputed that, the
plaintiff was put into physical possession of the suit property,
moreover, watchmen deployed by the Plaintiff was illegally
dispossessed after filling of the suit. Thus, the Plaintiff is
entitled to mandatory injunction, as prayed for, vide
application at Exh. 15.
10.14 Learned Senior Counsel Mr. Kavina would further submit
that no sound reasoning was assigned to refuse the temporary
injunction pending the suit by the Trial Court.
10.15 To buttress his arguments, Learned Senior Counsel
Mr.Kavina would rely upon the following decisions:-
(1) Natwarlal Ranchhoddas Patel and ors. vs.
Harendrabhai Somjibhai Patel, reported in 2021 (4)
GLR 2936 (relied upon 3, 8 and 8.7);
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(2) Maharwal Khewaji Trust (Regd) Faridkot v. Baldev
Dass reported in 2004 (8) SCC 488, (relied upon para
10).
(3) Julien Education Trust vs. Sourendar Kumar Roy
and Ors. reported in (2010) 1 SCC 379 (relied upon
para 25)
(4) L/H Abdulhak Abdulmajid Munshi vs. Habibunisa
reported in 2019 SCConline Guj 6174 (relied upon
para 14)
(5) A Kanthamani vs. Nasreen Ahmed reported in 2017
4 SCC 654 (relied upon para 7, 13, 16 and 30)
(6) Kushal Infraproject Industries Ltd. v. Dalel Singh
and Anr. reported in 2019 SCC Online Del 8832 (relied
upon para 1, 4, 5, 9, and 8 to 11 & 14;
(7) Manisha v. Madanlal reported in 2023 SCC
OnlineBom 1581 (relied upon para 8, 22 and 26).
10.16 Making the above submission, he would request to allow
the present appeal from order.
11. At this stage, it is required to be observed that this Court
after hearing learned advocates appearing for respective parties
at length has reserved matters for judgement on 24.02.2024.
Nonetheless, learned advocate appearing for defendants have
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orally mentioned on 08-04-2025 in the open Court by
informing in advance to learned advocate appearing for
plaintiff that recently on 04-04-2025, Honorable Apex Court in
a case of Sangita Sinha Versus Bhawana Bhardwaj and Others in Civil
Appeal No. 4972/2025 reported in 2025 SCC Online SC 723 again
reiterated principle so laid down by it in a case of I S Sikandar (supra)
and R. Kandasamy (Since dead) & Ors, (supra).
11.1 To observe principles of natural justice, audience given to the
learned advocate appearing for plaintiff to address his point or concern
against cited judgement. Learned advocate for plaintiff has without any
reservation address on citing recent decision of Honourable Apex Court
by learned advocate of defendant would submit that above cited recent
judgement is not at all applicable to the facts of the present as in the case
before Honourable Apex Court, demand draft was enchased by vendee
(purchaser) thereby, Court hold that agreement to sell stood cancelled and
concluded that what has been argued on behalf of plaintiff in course of
oral submission may be taken note by this Court.
No other and further submission are made by any respective
learned advocates appearing for respective parties.
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Points for determination
(1) Whether in the facts and circumstances of the
case, in absence of any challenge of cancellation of
agreement for sale by executors, plaintiff can maintain
suit seeking performance of non-existent agreement?
(2) Whether in the facts and circumstances of the
case, defendants are able to substantiate that no
prima facie case is made out by plaintiff and plaintiff
was not ready and willing to perform part of his
contract?
(3) Whether in the facts and circumstances of the
case, plaintiff would able to prove that order
impugned in appeal is erroneous, perverse, and or
arbitrary having not observed that balance of
convenience and irreparable loss was in favour of
plaintiff than defendants?
(4) Whether in the facts and circumstances of the
case, the impugned order requires to be interfered on
any of issues so raised by plaintiff in these appeals?
12. Analysis:
12.1 Before adverting to the issues so germen in these appeals,
it is required to be kept in mind that the present Appeal from
Order is filed under the provisions of Order XLIII Rule 1 (r) of
the Code and challenge in this appeal is a discretionary order
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passed by the learned trial Judge under the provisions of Order
XXXIX Rules 1 and 2 of the CPC.
12.2 In the case of Wonder Ltd. and another V/s. Antox India
Pvt. Ltd., (1990) Supp 1 SCC 727, the Hon’ble Apex Court in
para 9 of the said decision, after considering the scope of
Order XLIII Rule 1(r) of the CPC in an appeal wherein, the
discretionary order passed by the learned trial Court is under
challenge, observed as under:-
“9. Usually, the prayer for grant of an interlocutory
injunction is at a stage when the existence of the legal
right asserted by the plaintiff and its alleged violation are
both contested and uncertain and remain uncertain till
they are established at the trial on evidence. The court, at
this stage, acts on certain well settled principles of
administration of this form of interlocutory remedy which
is both temporary and discretionary. The object of the
interlocutory injunction, it is stated“…is to protect the plaintiff against injury by
violation of his rights for which he could not
adequately be compensated in damages
recoverable in the action if the uncertainty were
resolved in his favour at the trial. The need for
such protection must be weighed against the
corresponding need of the defendant to be
protected against injury resulting from his having
been prevented from exercising his own legal
rights for which he could not be adequately
compensated. The court must weigh one needPage 44 of 107
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against another and determine where the
“balance of convenience lies”.
The interlocutory remedy is intended to preserve in status
quo, the rights of parties which may appear on a prima
facie. The court also, in restraining a defendant from
exercising what he considers his legal right but what the
plaintiff would like to be prevented, puts into the scales,
as a relevant consideration whether the defendant has yet
to commence his enterprise or whether he has already
been doing so in which latter case considerations
somewhat different from those that apply to a case where
the defendant is yet to commence his enterprise, are
attracted.”
(emphasis supplied)
12.3 Recently, in a case of Ramakant Ambalal Choksi V/s
Harish Ambalal Choksi reported in 2024 SCC Online SC 3538
also reiterated aforesaid principle, albeit with explaining what
amounts to perversity in order having so observed as under:-
“27. The principles of law explained by this Court in
Wander’s (supra) have been reiterated in a number of
subsequent decisions of this Court. However, over a period
of time the test laid down by this Court as regards the
scope of interference has been made more stringent. The
emphasis is now more on perversity rather than a mere
error of fact or law in the order granting injunction
pending the final adjudication of the suit.
28. In Neon Laboratories Ltd. v. Medical Technologies Ltd.,
(2016) 2 SCC 672 this Court held that the Appellate Court
should not flimsily, whimsically or lightly interfere in the
exercise of discretion by a subordinate court unless such
exercise is palpably perverse. Perversity can pertain to the
understanding of law or the appreciation of pleadings orPage 45 of 107
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evidence. In other words, the Court took the view that to
interfere against an order granting or declining to grant a
temporary injunction, perversity has to be demonstrated in
the finding of the trial court.
29. In Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan,
(2013) 9 SCC 221 this Court emphasised on the principles
laid down in Wander (supra) and observed that while the
view taken by the appellate court may be an equally
possible view, the mere possibility of taking such a view
must not form the basis for setting aside the decision
arrived at by the trial court in exercise of its discretion
under Order 39 of the CPC. The basis for substituting the
view of the trial court should be malafides, capriciousness,
arbitrariness or perversity in the order of the trial court.
The relevant observations are extracted below:
“20. In a situation where the learned trial court
on a consideration of the respective cases of the
parties and the documents laid before it was of
the view that the entitlement of the plaintiffs to
an order of interim mandatory injunction was in
serious doubt, the Appellate Court could not have
interfered with the exercise of discretion by the
learned Trial Judge unless such exercise was
found to be palpably incorrect or untenable. The
reasons that weighed with the learned Trial
Judge, as already noticed, according to us, do
not indicate that the view taken is not a possible
view. The Appellate Court, therefore, should not
have substituted its views in the matter merely
on the ground that in its opinion the facts of the
case call for a different conclusion. Such an
exercise is not the correct parameter for exercise
of jurisdiction while hearing an appeal against a
discretionary order. While we must not be
understood to have said that the Appellate Court
was wrong in its conclusions what is sought to
be emphasized is that as long as the view of the
trial court was a possible view the Appellate
Court should not have interfered with the samePage 46 of 107
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following the virtually settled principles of law in
this regard as laid down by this Court in Wander
Ltd. v. Antox India (P) Ltd.”
(emphasis supplied)
32. The appellate court in an appeal from an interlocutory
order granting or declining to grant interim injunction is
only required to adjudicate the validity of such order
applying the well settled principles governing the scope of
jurisdiction of appellate court under Order 43 of the CPC
which have been reiterated in various other decisions of
this Court. The appellate court should not assume
unlimited jurisdiction and should guide its powers within
the contours laid down in the Wander (supra) case.
34. The burden is on the plaintiff, by evidence aliunde by
affidavit or otherwise, to prove that there is “a prima
facie case” in his favour which needs adjudication at the
trial. The existence of the prima facie right and infraction
of the enjoyment of his property or the right is a
condition precedent for the grant of temporary injunction.
Prima facie case is not to be confused with prima facie
title which has to be established on evidence at the trial.
Only prima facie case is a substantial question raised,
bona fide, which needs investigation and a decision on
merits. Satisfaction that there is a prima facie case by
itself is not sufficient to grant injunction. The Court
further has to satisfy that non-interference by the court
would result in “irreparable injury” to the party seeking
relief and that there is no other remedy available to the
party except one to grant injunction and he needs
protection from the consequences of apprehended injury or
dispossession. Irreparable injury, however, does not mean
that there must be no physical possibility of repairing the
injury, but means only that the injury must be a material
one, namely one that cannot be adequately compensated
by way of damages. The third condition also is that “the
balance of convenience” must be in favour of granting
injunction. The Court while granting or refusing to grant
injunction should exercise sound judicial discretion to find
the amount of substantial mischief or injury which is
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likely to be caused to the parties, if the injunction is
refused and compare it with that which is likely to be
caused to the other side if the injunction is granted. If on
weighing competing possibilities or probabilities of
likelihood of injury and if the Court considers that
pending the suit, the subject matter should be maintained
in status quo, an injunction would be issued. Thus, the
Court has to exercise its sound judicial discretion in
granting or refusing the relief of ad interim injunction
pending the suit. (See : Dalpat Kumar v. Prahlad Singh,
(1992) 1 SCC 719.)
35. Any order made in conscious violation of pleading and
law is a perverse order. In Moffett v. Gough, (1878) 1 LR
1r 331, the Court observed that a perverse verdict may
probably be defined as one that is not only against the
weight of evidence but is altogether against the evidence.
In Godfrey v. Godfrey, 106 NW 814, the Court defined
“perverse” as “turned the wrong way”; not right;
distorted from the right; turned away or deviating from
what is right, proper, correct, etc.
37. The wrong finding should stem out on a complete
misreading of evidence or it should be based only on
conjectures and surmises. Safest approach on perversity is
the classic approach on the reasonable man’s inference on
the facts. To him, if the conclusion on the facts in
evidence made by the court below is possible, there is no
perversity. If not, the finding is perverse. Inadequacy of
evidence or a different reading of evidence is not
perversity. (See : Damodar Lal v. Sohan Devi, (2016) 3
SCC 78).”
(emphasis supplied)
12.4 So, in light of the limited powers of this Court, the
Appellate Court can interfere with the discretionary order
passed by the trial Court only in exceptional circumstances and
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the Appellate Court cannot interfere with the exercise of
discretion of the Court of first instance and substitute its own
discretion except, where the discretion has been shown to have
been exercised arbitrarily, capriciously or perversely or where
the Court had ignored the settled principles of law regulating
grant or refusal of interlocutory injunctions. In nutshell, an
appeal against exercise of discretion is said to be an appeal on
principle. To put it differently, the Appellate Court cannot
reassess the entire evidence so as to come to its own
conclusion substituting the conclusion arrived at by the trial
Court, if two views are possible.
13. Prima facie case and Effect of Non-Challenge of
cancellation of agreement for sale by plaintiff in suit: –
13.1 The trial court, in its impugned order, has observed that
plaintiff has made out a prima facie case. Learned advocate
appearing for the defendants has strongly objected to such
observations and findings recorded by the trial court, thereby
disputing issue No.1 framed by the trial court– i.e. whether
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plaintiff has a prima facie case?
13.2 The defendants have not filed an independent appeals
questioning the aforesaid findings of the trial court but have
disputed such findings by making their factual and legal
submissions, which are recorded hereinabove. Such recourse is
permissible in law as per Order XLI, Rule 22 of the CPC, and
it has also been clarified by the Honorable Apex Court in the
case of Saurav Jain & Anr. (supra) as under:
“[21] Apart from the above findings which negate the
basis and foundation of the suit, the appellant-defendant
has also raised an objection to the jurisdiction of the Trial
Court to entertain the present suit, given the bar on
jurisdiction under the ULCRA. The appellant has submitted
that the first respondent, through an artful drafting of the
plaint in the course of the pleadings in the suit placed in
issue the entire gamut of proceedings under the ULCRA,
without impleading either the State of Uttar Pradesh or
the Competent Authority under the ULCRA. At the outset,
we note that the ground of lack of jurisdiction of the Trial
Court over the suit was raised in the proceedings before
the court of first instance. The Trial Court rejected the
objection raised by the appellant-defendant on the exercise
of its jurisdiction, holding that the suit for declaratory
relief against the auction sale and for an injunction could
be entertained. In the appeal against the judgment of the
Trial Court filed by the first respondent before the HighPage 50 of 107
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Court, the appellant did not file a cross-objection against
this finding of the Trial Court on the exercise of its
jurisdiction. The appellant has urged before this Court that
the jurisdiction of the civil court is impliedly excluded
under the provisions of the ULCRA. Reliance has been
placed by the appellant on Order XLI Rule 22 of the CPC
to argue that a party, in whose favour the civil court has
decreed a suit, can raise arguments against findings
without having to file a cross- objection, in the appeal.
[22] Order XLI Rule 22(1) reads in the following terms:
“(1) Any respondent, though he may not have
appealed from any part of the decree, may not only
support the decree [but may also state that the
finding against him in the Court below in respect of
any issue ought to have been in his favour; and may
also take any cross-objection] to the decree which he
could have taken by way of appeal provided he has
filed such objection in the Appellant Court within one
month from the date of service on him or his pleader
of notice of the day fixed for hearing the appeal, or
within such further time as the Appellate Court may
see fit to allow.
[Explanation. – A respondent aggrieved by a finding of
the Court in the judgment on which the decree
appealed against is based may, under this rule, file
cross-objection in respect of the decree in so far as it
is based on that finding, notwithstanding that by
reason of the decision of the Court on any other
finding which is sufficient for the decision of the suit,
the decree, is, wholly or in part, in favour of that
respondent.]”
Order XLI Rule 22 CPC was amended by the CPC
Amendment (Act 104 of 1976), with effect from 1Page 51 of 107
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February 1977. The text of the pre-amendment and
post-amendment provision is reproduced below:
Order XLI Rule 22 prior to its amendment Order XLI
Rule 22 as amended by Act 104 of 1976Order XLI Rule 22 prior to its Order XLI Rule 22 as
amendment amended by Act 104 of1976
R.22. Upon hearing, R.22. Upon hearing,
respondent may object to respondent way object to
decree as if he had preferred a decree as If he had preferred
separate appeal- a separate appeal-
(1) Any respondent, though he
may not have appealed from (1) Any respondent, though
any part of the decree, may he may not have appealed
not only support the decree on from any part of the decree,
any of the grounds decided may not only support the
against him in the Court decree [but may also state
below, but take any cross- that the finding against him
objection to the decree which in the Court below in respect
he could have taken by way of of any issue ought to have
appeal, provided he has filed been in his favour; and may
such objection in the Appellate also take any cross- objection]
Court within one month from to the decree which he could
the date of service on him or have taken by way of appeal
his pleader of notice of the provided he has filed such
day fixed for hearing the objection in the Appellant
appeal, or within such further Court within one month from
time as the Appellate Court the date of service on him or
may see fit to allow. his pleader of notice of the
day fixed for hearing the
appeal, or within such
further time as the Appellate
Court may see fit to allow.
[Explanation. – A respondent
aggrieved by a finding of the
Court in the judgment on
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which the decree appealed
against is based may, under
this rule, file cross-
objection in respect of the
decree in so far as it is based
on that finding,
notwithstanding that by
reason of the decision of the
Court on any other finding
which is sufficient for the
decision of the suit, the
decree, is, wholly or in part,
in favour of that respondent.]
(emphasis supplied)
[23] The effect of the amendment was considered in Banarsi &
Ors. v. Ram Phal, 2003 9 SCC 606. , where this Court held that
after the 1976 amendment, the respondent could file cross-
objections against the ‘findings’ of the lower court, while previously
cross-objections could only be filed when the decree of the lower
court was partly against the respondent. Justice R.C Lahoti (as the
learned Chief Justice then was), speaking for the two judge bench
observed:
“10-. [ ] There may be three situations:
(i) The impugned decree is partly in favour of the appellant
and partly in favour of the respondent.
(ii) The decree is entirely in favour of the respondent though
an issue has been decided against the respondent.
(iii) The decree is entirely in favour of the respondent and all
the issues have also been answered in favour of the
respondent but there is a finding in the judgment which goes
against the respondent.
11. In the type of case (i) it was necessary for the respondent
to file an appeal or take cross-objection against that part of
the decree which is against him if he seeks to get rid of the
same though that part of the decree which is in his favour he
is entitled to support without taking any cross-objection. The
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law remains so post-amendment too. In the type of cases (ii)
and (iii) pre-amendment CPC did not entitle nor permit the
respondent to take any cross-objection as he was not the
person aggrieved by the decree. Under the amended CPC,
read in the light of the explanation, though it is still not
necessary for the respondent to take any cross-objection
laying challenge to any finding adverse to him as the
decree is entirely in his favour and he may support the
decree without cross-objection; the amendment made in
the text of sub-rule (1), read with the explanation newly
inserted, gives him a right to take cross-objection to a
finding recorded against him either while answering an
issue or while dealing with an issue. The advantage of
preferring such cross-objection is spelled out by sub-rule (4).
In spite of the original appeal having been withdrawn or
dismissed for default the cross-objection taken to any finding
by the respondent shall still be available to be adjudicated
upon on merits which remedy was not available to the
respondent under the unamended CPC. In the pre-
amendment era, the withdrawal or dismissal for default of the
original appeal disabled the respondent to question the
correctness or otherwise of any finding recorded against the
respondent.”
(emphasis supplied)
[24] Order XLI Rule 22(2) of the CPC states that a “cross-objection
shall be filed in the form of a memorandum, and the provisions of
Rule 1, so far as they relate to the form and contents of the
memorandum of appeal, shall apply thereto.” This Court in S.
Nazeer Ahmed v. State Bank of Mysore, 2007 11 SCC 75.
elaborated on the form of objections made under Order XLI Rule 22
CPC. In Nazeer Ahmed (supra), the respondent had filed a suit for
enforcement of an equitable mortgage. In deciding the suit, the Trial
Court rejected the argument of the appellant-defendant and held
that the suit was not barred by Order II Rule 2 of the CPC.
However, the court dismissed the suit on grounds of limitation. On
an appeal filed by the respondent before the High Court, the High
Court observed that although the suit was barred by Order II Rule 2
of the CPC, the appellant had not challenged this finding of the Trial
Court by filing a memorandum of cross-objection. Thus, the High
Court granted the respondent a decree against the appellant. When
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this finding of the High Court was assailed before this Court, Justice
P.K Balasubramanyam held that a memorandum of cross-objection
needs to be filed while taking recourse to Order XLI Rule 22 only
when the respondent claims a relief that had been rejected by the
trial court or seeks an additional relief apart from that provided by
the trial court. The court held that a memorandum of objection need
not be filed when the appellant only assailed a ‘finding’ of the lower
court:
“7. The High Court, in our view, was clearly in error in holding
that the appellant not having filed a memorandum of cross-
objections in terms of Order 41 Rule 22 of the Code, could not
challenge the finding of the trial court that the suit was not
barred by Order 2 Rule 2 of the Code. The respondent in an
appeal is entitled to support the decree of the trial court
even by challenging any of the findings that might have
been rendered by the trial court against himself. For
supporting the decree passed by the trial court, it is not
necessary for a respondent in the appeal, to file a
memorandum of cross-objections challenging a particular
finding that is rendered by the trial court against him
when the ultimate decree itself is in his favour. A
memorandum of cross-objections is needed only if the
respondent claims any relief which had been negatived to
him by the trial court and in addition to what he has
already been given by the decree under challenge. We
have therefore no hesitation in accepting the submission
of the learned counsel for the appellant that the High
Court was in error in proceeding on the basis that the
appellant not having filed a memorandum of cross-
objections, was not entitled to canvas the correctness of
the finding on the bar of Order 2 Rule 2 rendered by the
trial court.”
(emphasis supplied)
[25] It is apparent from the amended provisions of Order XLI Rule
22 CPC and the above authorities that there are two changes that
were brought by the 1976 amendment. First, the scope of filing of a
cross-objection was enhanced substantively to include objections
against ‘findings’ of the lower court; second, different forms of
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raising cross-objections were recognised. The amendment sought
to introduce different forms of cross-objection for assailing the
findings and decrees since the amendment separates the phrase
“but may also state that the finding against him in the Court below
in respect of any issue ought to have been in his favour” from “may
also take any cross-objection to the decree” with a semi colon.
Therefore, the two parts of the sentence must be read disjunctively.
Only when a part of the decree has been assailed by the
respondent, should a memorandum of cross-objection be filed.
Otherwise, it is sufficient to raise a challenge to an adverse finding
of the court of first instance before the appellate court without a
cross objection.
[26] The applicability of the principle in Order XLI Rule 22 CPC to
proceedings before this Court under Article 136 of the Constitution
was considered by a Constitution Bench in the decision
in Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji, 1965
AIR(SC) 669. . Justice JR Mudholkar overruled the judgment of the
three judge bench in Vashist Narain Sharma v. Dev Chandra,
1955 1 SCR 509 which had rejected the argument of the
respondent that a party could raise arguments on the ‘findings’ that
were against him, while supporting the judgment. It was held that
Order XLI Rule 22 of the CPC does not have application to an
appeal under Article 136. In Ramanbhai Ashabhai Patel (supra),
this Court held that the provisions of Order XLI Rule 22 of the CPC
are not applicable to the Supreme Court and the rules of the
Supreme Court do not provide for any analogous provisions.
However, it was held that this deficiency must be supplemented by
drawing from CPC:
“18. [ ] Apart from that we think that while dealing with the
appeal before it this Court has the power to decide all the
points arising from the judgment appealed against and even
in the absence of an express provision like Order [4]1 Rule 22
of the Code of Civil Procedure it can devise the appropriate
procedure to be adopted at the hearing. There could be no
better way of supplying the deficiency than by drawing
upon the provisions of a general law like the Code of
Civil Procedure and adopting such of those provisions as
are suitable. We cannot lose sight of the fact that
normally a party in whose favour the judgment appealedPage 56 of 107
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from has been given will not be granted special leave to
appeal from it. Considerations of justice, therefore,
require that this Court should in appropriate cases permit
a party placed in such a position to support the judgment
in his favour even upon grounds which were negatived in
that judgment. [ ]”
(emphasis supplied)
Expanding on this further, a two judge Bench (Justice R.C
Lahoti speaking for himself and Justice Brijesh Kumar) of this
Court in Jamshed Hormusji Wadia v. Port of Mumbai, 2004
3 SCC 214. observed:
“35. A few decisions were brought to the notice of this Court
by the learned Additional Solicitor General wherein this Court
has made a reference to Order 41 Rule 22 CPC and
permitted the respondent to support the decree or decision
under appeal by laying challenge to a finding recorded or
issue decided against him though the order, judgment or
decree was in the end in his favour. Illustratively, see
Ramanbhai Ashabhai Patel [Ramanbhai Ashabhai Patel v.
Dabhi Ajitkumar Fulsinji, 1965 AIR(SC) 669] , Northern
Railway Coop. Credit Society Ltd. [Northern Railway Coop.
Credit Society Ltd. v. Industrial Tribunal, 1967 AIR(SC)
1182] and Bharat Kala Bhandar (P) Ltd. [Bharat Kala
Bhandar (P) Ltd. v. Municipal Committee, Dhamangaon,
1966 AIR(SC) 249] The learned Additional Solicitor General is
right. But we would like to clarify that this is done not because
Order 41 Rule 22 CPC is applicable to appeals preferred
under Article 136 of the Constitution; it is because of a basic
principle of justice applicable to courts of superior jurisdiction.
A person who has entirely succeeded before a court or
tribunal below cannot file an appeal solely for the sake of
clearing himself from the effect of an adverse finding or an
adverse decision on one of the issues as he would not be a
person falling within the meaning of the words ‘person
aggrieved’. In an appeal or revision, as a matter of general
principle, the party who has an order in his favour, is entitled
to show that even if the order was liable to be set aside on the
grounds decided in his favour, yet the order could be
sustained by reversing the finding on some other ground
which was decided against him in the court below. ThisPage 57 of 107
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position of law is supportable on general principles without
having recourse to Order 41 Rule 22 of the Code of Civil
Procedure. Reference may be had to a recent decision of this
Court in Nalakath Sainuddin v. Koorikadan Sulaiman,
2002 6 SCC 1 and also Banarsi v. Ram Phal, 2003 9 SCC
606 . This Court being a court of plenary jurisdiction, once the
matter has come to it in appeal, shall have power to pass any
decree and make any order which ought to have been passed
or made as the facts of the case and law applicable thereto
call for. Such a power is exercised by this Court by virtue
of its own jurisdiction and not by having recourse to
Order 41 Rule 33 CPC though in some of the cases
observations are available to the effect that this Court
can act on the principles deducible from Order 41 Rule 33
CPC. It may be added that this Court has jurisdiction to
pass such decree or make such order as is necessary for
doing complete justice in any cause or matter pending
before it. Such jurisdiction is conferred on this Court by
Article 142 of the Constitution and this Court is not
required to have recourse to any provision of the Code of
Civil Procedure or any principle deducible therefrom.
However, still, in spite of the wide jurisdiction being available,
this Court would not ordinarily make an order, direction or
decree placing the party appealing to it in a position more
disadvantageous than in what it would have been had it not
appealed.”
(emphasis supplied)
[27] On a perusal of the above authorities, it is evident that the
principle stipulated in Order XLI Rule 22 of CPC can be applied to
petitions under Article 136 of the Constitution because of this
Court’s wide powers to do justice under Article 142 of the
Constitution. Since the principle in Order XLI Rule 22 of the
CPC furthers the cause of justice by providing the party other
than the ‘aggrieved party’ to raise any adverse findings
against them, this Court can draw colour from Order XLI Rule
22 CPC and permit objections to findings.
[28] From the above it has been established that it not
necessary that a challenge to the adverse findings of the
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lower court needs to be made in the form of a memorandum of
cross-objection. In the present case, we note that the appellant
had raised an objection to the jurisdiction of the Trial Court for
entertaining the suit on the ground that an injunction and
declaratory relief could not have been given. Although the Trial
Court passed a decree in favour of the appellant, it had decided
against the appellant on the question of jurisdiction. This finding
was not challenged by the appellant before the High Court in the
form of a memorandum of cross-objection. The judgment of the
High Court makes no mention that a plea of lack of jurisdiction was
taken by either the appellant or the MDA. Before this Court, the
appellant has not filed the counter-affidavit it had filed before the
High Court. Thus, the conclusion that emanates from the
record before us is that the ground of jurisdiction was only
raised by the appellant before the Trial Court and not before
the High Court. In effect then, this Court would have to
adjudicate on a plea, which did not form a part of the decision
of the High Court in challenge before us.”
(emphasis supplied)
13.3 So, this point is now required to be examined first to
determine whether plaintiff has made out a prima facie case or
not?
13.4 It is an undisputed fact that vide communication dated
30.12.2020, executors of agreement for sale had cancelled the
agreement dated 06.02.2018. It is undisputed before the trial
court and before this court that the plaintiff has not challenged
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such cancellation of the agreement for sale by the executors in
the suit having not amended its plaint and or prayers made in
the plaint.
13.5 In view of the above factual scenario, learned Senior
Counsel Mr. Shah and learned Counsel Ms. Jani have heavily
relied upon the decision of the Honorable Apex Court in the
case of I S Sikandar (supra) and Mohinder Kaur (supra),
thereby contended that the suit itself is not maintainable.
13.6 Whereas, learned Senior Counsel Mr. Kavina, in his
rejoinder arguments, has placed heavy reliance upon the
decision of the Honorable Apex Court in the case of A.
Kanthamani (supra), whereby he has emphasized that the
points/issues raised by the defendants in the present appeals
were neither part of their written statement nor pressed into
service before the trial court while defending the injunction
application. Thus, learned Senior Counsel Mr. Kavina would
submit that defendants cannot be allowed to raise such issues
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at this stage and in the present appeals.
13.7 Learned Counsel Mr. Kavina has also further placed
reliance upon the decision of the Delhi High Court in the case
of Kushal Infraproject (supra) and the Bombay High Court in
the case of Manisha (supra), thereby contended that the issue
regarding the cancellation of the agreement for sell in question
requires adjudication by the trial court, and at this stage, this
Court is not required to accept the arguments of the
defendants.
13.8 Per Contra, Learned advocate Ms. Jani has placed reliance
upon the decision of the Honorable Apex Court in the case of
R. Kandasamy (supra), whereby she has contended that the
Honorable Apex Court, after considering the decisions in the
case of I S Sikandar (supra) and A. Kanthamani (supra), has
held that when the question of jurisdiction arises in the
matter, it can be decided at any stage, including before the
Honorable Apex Court.
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13.9 Learned Counsel Ms. Jani would submit that the issue
regarding the non-challenge of the cancellation of the
agreement for sale / MoU by the plaintiff in the suit, requires
consideration by this Court in the present appeals.
14. It would be appropriate to refer to relevant observations
made by the Honorable Apex Court in the case of I S Sikandar
(supra), followed in Mohinder Kaur (supra), which makes it
very clear that the plaintiff is supposed to challenge the
cancellation of the agreement for sale by the defendant, failing
which the suit itself is held to be not maintainable in law. The
relevant observation of Hon’ble Apex Court made in Mohinder
Kaur (supra), needs to be reproduced herein below as under,
“[7] The agreement was cancelled by the appellant on
01.09.1989 and the consideration already paid confiscated
under intimation to the respondent. The respondent never
challenged the communication of cancellation. In Sikandar
(supra) it was observed as follows:
“37. As could be seen from the prayer sought for in the
original suit, the Plaintiff has not sought for declaratory relief
to declare the termination of Agreement of Sale as bad in
law. In the absence of such prayer by the Plaintiff the
original suit filed by him before the trial court for grant of
decree for specific performance in respect of the suit schedulePage 62 of 107
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property on the basis of Agreement of Sale and consequential
relief of decree for permanent injunction is not maintainable
in law.
38. Therefore, we have to hold that the relief sought for by
the Plaintiff for grant of decree for specific performance of
execution of sale deed in respect of the suit schedule property
in his favour on the basis of non existing Agreement of Sale
is wholly unsustainable in law….”
(emphasis supplied)
14.1 Furthermore, close reading of I S Sikandar (supra), would
indicate that despite not framing such an issue of
maintainability of suit either by the trial court or before the
High Court, the Honorable Apex Court framed such an issue
and answered it accordingly.
14.2 It is true that I S Sikandar (supra), was considered by
Hon’ble Apex Court in a case of A. Kanthamani (supra),
wherein observed as under,
“30. Coming first to the submission of the learned counsel for
the appellant about the maintainability of suit, in our
considered view, it has no merit for more than one reason.
30.1 First, as rightly argued by learned counsel for the
respondent, the objection regarding the maintainability of the
Suit was neither raised by the defendant in the written
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statement nor in first appeal before the High Court and nor
in grounds of appeal in this Court.
30.2 Second, since no plea was raised in the written
statement, a fortiori, no issue was framed and, in
consequence, neither the Trial Court nor the High Court could
render any finding on the plea.
30.3 Third, it is a well-settled principle of law that the plea
regarding the maintainability of suit is required to be raised
in the first instance in the pleading (written statement) then
only such plea can be adjudicated by the Trial Court on its
merits as a preliminary issue under Order 14 Rule 2 of the
CPC. Once a finding is rendered on the plea, the same can
then be examined by the first or/and second appellate Court.
30.4 It is only in appropriate cases, where the Court prima
facie finds by mere perusal of plaint allegations that the suit
is barred by any express provision of law or is not legally
maintainable due to any legal provision; a judicial notice can
be taken to avoid abuse of judicial process in prosecuting
such suit. Such is, however, not the case here.
30.5 Fourth, the decision relied on by the learned counsel for
the appellant in the case of I.S. Sikander turns on the facts
involved therein and is thus distinguishable.
30.6 Lastly, the suit filed by the respondent seeking specific
performance of the agreement dated 05.03.1989 was
maintainable for the reason that the cause of action to file
the suit arose on the expiry of period mentioned in the
agreement (31.12.1989) for its performance as provided in
Article 54 of the Limitation Act and it was rightly filed
immediately within 10 days on 10.01.1990.”
(emphasis supplied)
14.3 So, what was held in A. Kanthamani (supra), that if the
objection regarding the maintainability of the suit was neither
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raised by the defendant in their written statement, nor in the
first appeal before the High Court, nor even as a ground
agitated in the appeal filed before the Honorable Apex Court,
and if no such issue was framed regarding the non-challenge
of the cancellation of the agreement for sale, then such a plea
was not allowed to be raised by the defendant before the
Honorable Apex Court.
14.4 To better understand the issue in detail and its
applicability to the facts of the present case, it would be
profitable to refer and to rely upon the decision of the
Honorable Apex Court in the case of R. Kandasamy (supra),
wherein Hon’ble Apex Court after considering both these
decisions i.e. I S Sikandar (supra) and A. Kanthamani (supra),
held as under:
“[40] Having held thus, allowing the appeal is the inevitable
result. However, before we part, there seems to be a
discordant note struck by the decision in A. Kanthamani
(supra) while distinguishing I.S. Sikandar (supra), which could
create uncertainty and confusion. It is, therefore, considered
worthwhile to attempt and clear the same.
[41] A comprehensive reading of the two decisions reveals that
in a fact scenario where the vendor unliterally cancels an
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agreement for sale, the vendee who is seeking specific
performance of such agreement ought to seek declaratory relief
to the effect that the cancellation is bad and not binding on
the vendee. This is because an agreement, which has been
cancelled, would be rendered non-existent in the eyes of law
and such a non-existent agreement could not possibly be
enforced before a court of law. Both the decisions cited above
are unanimous in their approval of such legal principle.
However, as clarified in Kanthamani (supra), it is imperative
that an issue be framed with respect to maintainability of the
suit on such ground, before the court of first instance, as it is
only when a finding on the issue of maintainability is rendered
by trial court that the same can be examined by the first
or/and second appellate court. In other words, if
maintainability were not an issue before the trial court or the
appellate court, a suit cannot be dismissed as not
maintainable. This is what Kanthamani (supra) holds.
[42] The aforesaid two views of this Court, expressed by
coordinate benches, demand deference. However, it is noticed
that this Court in Kanthamani (supra) had not been addressed
on the effect of non-existence of a jurisdictional fact (the
existence whereof would clothe the trial court with jurisdiction
to try a suit and consider granting relief), i.e., what would be
its effect on the right to relief claimed by the plaintiff in a
suit for specific performance of contract.
[43] In Shrisht Dhawan (Smt) v. Shaw Bros., 1992 1 SCC 534
an interesting discussion on ‘jurisdictional fact’ is found in the
concurring opinion of Hon’ble R. M. Sahai, J. (as His Lordship
then was). It reads:
“19. *** What, then, is an error in respect of jurisdictional
fact? A jurisdictional fact is one on existence or non-existence
of which depends assumption or refusal to assume jurisdiction
by a court, tribunal or an authority. In Black’s Legal
Dictionary it is explained as a fact which must exist before a
court can properly assume jurisdiction of a particular case.
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Mistake of fact in relation to jurisdiction is an error of
jurisdictional fact. No statutory authority or tribunal can
assume jurisdiction in respect of subject matter which the
statute does not confer on it and if by deciding erroneously
the fact on which jurisdiction depends the court or tribunal
exercises the jurisdiction then the order is vitiated. Error of
jurisdictional fact renders the order ultra vires and bad (Wade,
Administrative Law. In Raza Textiles [(1973) 1 SCC 633] it was
held that a court or tribunal cannot confer jurisdiction on
itself by deciding a jurisdictional fact wrongly. ***”
(emphasis supplied)
[44] Borrowing wisdom from the aforesaid passage, our
deduction is this. An issue of maintainability of a suit strikes
at the root of the proceedings initiated by filing of the plaint
as per requirements of Order VII Rule 1, CPC. If a suit is
barred by law, the trial court has absolutely no jurisdiction to
entertain and try it. However, even though a given case might
not attract the bar envisaged by section 9, CPC, it is
obligatory for a trial court seized of a suit to inquire and
ascertain whether the jurisdictional fact does, in fact, exist to
enable it (the trial court) to proceed to trial and consider
granting relief to the plaintiff as claimed. No higher court,
much less the Supreme Court, should feel constrained to
interfere with a decree granting relief on the specious ground
that the parties were not put specifically on notice in respect
of a particular line of attack/defence on which success/failure
of the suit depends, more particularly an issue touching the
authority of the trial court to grant relief if the ‘jurisdictional
fact’ imperative for granting relief had not been satisfied. It is
fundamental, as held in Shrisht Dhawan (supra), that
assumption of jurisdiction/refusal to assume jurisdiction would
depend on existence of the jurisdictional fact. Irrespective of
whether the parties have raised the contention, it is for the
trial court to satisfy itself that adequate evidence has been led
and all facts including the jurisdictional fact stand proved for
relief to be granted and the suit to succeed. This is a duty the
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trial court has to discharge in its pursuit for rendering
substantive justice to the parties, irrespective of whether any
party to the lis has raised or not. If the jurisdictional fact does
not exist, at the time of settling the issues, notice of the
parties must be invited to the trial court’s prima facie opinion
of non-existent jurisdictional fact touching its jurisdiction.
However, failure to determine the jurisdictional fact, or
erroneously determining it leading to conferment of
jurisdiction, would amount to wrongful assumption of
jurisdiction and the resultant order liable to be branded as
ultra vires and bad.
[45] Should the trial court not satisfy itself that the
jurisdictional fact for grant of relief does exist, nothing
prevents the court higher in the hierarchy from so satisfying
itself. It is true that the point of maintainability of a suit has
to looked only through the prism of section 9, CPC, and the
court can rule on such point either upon framing of an issue
or even prior thereto if Order VII Rule 11 (d) thereof is
applicable. In a fit and proper case, notwithstanding omission
of the trial court to frame an issue touching jurisdictional fact,
the higher court would be justified in pronouncing its verdict
upon application of the test laid down in Shrisht Dhawan
(supra).
[46] In this case, even though no issue as to maintainability of
the suit had been framed in course of proceedings before the
Trial Court, there was an issue as to whether the Agreement is
true, valid and enforceable which was answered against the
sellers. Obviously, owing to dismissal of the suit, the sellers
did not appeal. Nevertheless, having regard to our findings on
the point as to whether the buyer was ‘ready and willing’, we
do not see the necessity of proceeding with any further
discussion on the point of jurisdictional fact here.
[47] However, we clarify that any failure or omission on the
part of the trial Court to frame an issue on maintainability of
a suit touching jurisdictional fact by itself cannot trim the
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powers of the higher court to examine whether the
jurisdictional fact did exist for grant of relief as claimed,
provided no new facts were required to be pleased and no
new evidence led.”
(emphasis supplied)
14.5 As stated and referred herein above, this Court though
reserved the matters for judgement, after due observance of
principles of natural justice, has considered the recent decision
of Honorable Apex Court passed in a case of Sangita Sinha
(supra) wherein it has been observed and held as under,
“ABSENT A PRAYER FOR DECLARATORY RELIEF THAT
CANCELLATION OF THE AGREEMENT IS BAD IN LAW, A SUIT FOR
SPECIFIC PERFORMANCE IS NOT MAINTAINABLE
24. This Court further finds that the seller had admittedly issued a
letter dated 7th February 2008 cancelling the Agreement to Sell
dated 25th January 2008, prior to the filing of the subject suit on
5th May 2008. Even though the demand drafts enclosed with the
letter dated 07th February, 2008 were subsequently encashed in
July, 2008, yet this Court is of the view that it was incumbent upon
the Respondent No. 1-buyer to seek a declaratory relief that the said
cancellation is bad in law and not binding on parties for the reason
that existence of a valid agreement is sine qua non for the grant of
relief of specific performance.
25. This Court in I.S. Sikandar (Dead) By LRs. v. K.
Subramani, (2013) 15 SCC 27 has held that in absence of a prayer
for a declaratory relief that the termination of the agreement is bad
in law, the suit for specific performance of that agreement is not
maintainable. Though subsequently, this Court in A.
Kanthamani v. Nasreen Ahmed, (2017) 4 SCC 654 has held that the
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declaration of law in I.S. Sikander (Dead) By LRs. v. K.
Subramani (supra) regarding non-maintainability of the suit in the
absence of a challenge to letter of termination is confined to the
facts of the said case, yet the aforesaid issue has been recently
considered in R. Kandasamy (Since Dead) v. T.R.K.
Sarawathy (supra) authored by brother Justice Dipankar Datta and
the conflict between the judgment of I.S. Sikander (Dead) By
LRs. v. K. Subramani (supra) and A. Kanthamani v. Nasreen
Ahmed (supra) has been deliberated upon. In R. Kandasamy (Since
Dead) v. T.R.K. Sarawathy (supra), it has been clarified that the
appellate court would not be precluded from examining whether the
jurisdictional fact exists for grant of relief of specific performance,
notwithstanding the fact that the trial Court omitted or failed to
frame an issue on maintainability of the suit…………….
26. Since in the present case, the seller had issued a letter dated
07th February, 2008 cancelling the agreement to sell prior to the
institution of the suit, the same constitutes a jurisdictional fact as till
the said cancellation is set aside, the respondent is not entitled to
the relief of specific performance.
27. Consequently, this Court is of the opinion that absent a prayer
for declaratory relief that termination/cancellation of the agreement
is bad in law, a suit for specific performance is not maintainable.”
(emphasis supplied)
14.6 Thus, in view of the clear pronouncement of law by the
Honorable Apex Court, it would be very much clear like a day
that if vendor has cancelled agreement for sale prior to filing
of suit by vendee and such cancellation is not challenged by
vendee in the suit, the same constitutes a jurisdictional fact
and in absence of any a prayer for declaratory relief that
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termination/cancellation of the agreement is bad in law, suit
for specific performance is not maintainable. So, in view of
said position of law stood as on date, this Court is required to
examine the issue regarding the non-challenge of the
cancellation of the agreement for sale by the plaintiff in the
suit having so raised by defendants in these appeals.
14.7 Having observed earlier that undisputedly, despite
knowing that executors (defendant Nos. 4 & 6 and Late
Gulammohiyuddin M. Afinwala) has cancelled the agreement
for sale vide communication dated 30th December, 2020, the
plaintiff chosen not to challenge such cancellation of the
agreement for sale in the suit. In such a situation, prima facie,
in view of the ratio laid down in the case of I S Sikandar
(supra), followed in Mohinder Kaur (supra) which has been
elaborately discussed in R. Kandasamy (supra) again reiterated
in Sangita Sinha (supra), the suit itself is held to be not
maintainable. Once the foundation of the suit itself is weak, it
cannot be said that plaintiff has made out a prima facie case.
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15. So far as the decisions of the Delhi High Court in the case
of Kushal Infraproject (supra) and the Bombay High Court in
the case of Manisha (supra) are concerned, they are neither
applicable to the facts of the present case nor carry the case of
the appellant further apart from said, its settled position that
both are having persuasive value and not binding to this
Court.
15.1 Nonetheless, in the case of Kushal Infraproject (supra), the
observations of the Delhi High Court in paragraph 13 and 14
held as under:
“13. In fact, subsequently in A. Kanthamani, the Supreme
Court, in a case where the Defendant had cancelled the
agreement to sell, held that firstly time was not the essence of
the contract and the judgement of I.S. Sikandar turned on the
facts involved therein. The relevant observations of the Supreme
Court are set out below:
“34. Coming first to the submission of the learned Counsel
for the Appellant about the maintainability of suit, in our
considered view, it has no merit for more than one
reason.
39. Fourth, the decision relied on by the learned Counsel
for the Appellant in the case of I.S. Sikander (supra) turns
on the facts involved therein and is thus distinguishable.”
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14. Both I.S. Sikandar and A. Kanthamani were cases which
were finally adjudicated after evidence was led by the parties
and thus until evidence is led, it cannot be held at the initial
stage, that the suits are not maintainable.”
(emphasis supplied)
15.2 The aforesaid view, with respectful disagreement, would
not be a correct reading of the ratio of the decisions in the
case of I S Sikandar (supra), followed in Mohinder Kaur
(supra), and clarified in A Kandasamy (supra) again recently
followed in Sangita Sinha (supra). When the Honorable Apex
Court in clear terms, held that an issue as regards the
maintainability of the suit touching jurisdictional facts can be
examined for grant of relief at any stage, it would not be
correct to say that maintainability of suit can be examined
later on but not at initial stage of suit. This Court is not in a
position to subscribe said view of Delhi High Court which
according to me not a correct view but would rather like to
consider such a jurisdictional issue when it is raised before it
in these appeals.
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15.3 Likewise, the observations made by the Bombay High
Court in the case of Manisha (supra), wherein it has been so
held that the ratio of I S Sikandar (supra) would not be relied
upon in that case as the termination of the agreement will
have to be proved in the trial. It appears that in Mainsha
(supra), letter of termination of agreement for sale was not
served upon plaintiff which was one of factor, as well as it
observed that cancellation of agreement for sale can not be
raised as defence in a suit for specific performance thereby
held that its premature to rely upon ratio of I S Sikandar
(supra), thus it was not followed.
15.4 In the present case, such controversy was never raised
by the plaintiff, as in response to the communication dated
30.12.2020, plaintiff had issued his reply dated 04.01.2021 to
the aforesaid parties. So, plaintiff did received letter of
cancellation of agreement for sale. So far as raising of defence
by defendant in a suit for specific performance as regards to
cancellation of agreement for sale is concern, prima facie, I am
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not in agreement with a view taken by Bombay High Court.
When Hon’ble Apex Court in a case of I S Sikandar (supra),
allowed such defence to be raised for first time before it and
after framing such issue answered against vendee as well as
same is clarified recently in a case of A Kandasamy (supra)
followed in Sangita Sinha (supra) as regards to examination of
jurisdictional aspect at any stage of suit proceeding including
at appellate or final stage before Hon’ble Apex Court, it would
not be appropriate to suggest that such an issue can not be set
up as defence especially when it touches jurisdictional fact and
maintainability of suit.
15.5 In view of the above, the decisions of Delhi High Court
and Bombay High Court as such not applicable to facts of case
and not followed for aforesaid reasons.
15.6 Thus, after going through the aforementioned decisions of
the Honorable Apex Court, it can be held that plaintiff has not
sought declaratory relief against the termination of the
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agreement to sell as bad in law, then in the absence of such a
prayer in the suit filed by the plaintiff before the trial court
for grant of decree for specific performance in respect of the
suit schedule property on the basis of Agreement of Sale and
consequential relief of decree for permanent injunction is not
maintainable in law. Therefore, at this stage, in absence of
such declaratory relief prayed in the suit, no relief can be
granted of specific performance in respect of the suit property
on the basis of non-existing the agreement for sale.
Effect of Non-Execution of Agreement for sale by all owners.
16. Learned advocates appearing for the defendants have
vehemently submitted that the agreement for sale in question
has been entered into by three co-owners of the suit property
and not by all, whereby no performance of such an agreement
can be sought by the plaintiffs. Learned senior counsel Mr.
Mehul Shah has placed heavy reliance upon a decision in case
of Peemmada Prabhakar (supra), and thereby learned senior
counsel Mr. Shah would submit that undisputedly,
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Gulammohiyuddin M. Afinwala – deceased and defendant Nos.
1 (wife of Gulammohiyuddin M. Afinwala) and defendant nos. 4
to 7 are joint owners of the property, and all of them were
not signatories to the agreement. As per the provisions of
Section 17 of the Specific Relief Act, such an agreement is not
enforceable in law.
16.1 To support of his submission, he has heavily relied upon
the decision of Honourable Apex Court in the case of
Peemmada Prabhakar (supra), which reads as under:
“[29] It is an undisputed fact that the suit schedule property is
self acquired property by late Pemmada Venkateswara Rao as
he had purchased the said property vide Sale-Deed Document
No.5174 of 1970 dated 24.11.1970 from his vendors. It is also
an undisputed fact that the said property is intestate property.
He is survived by his wife, 3 sons and 3 daughters. The said
property devolved upon them in view of Section 8 of Chapter 2
of the Hindu Succession Act as the defendants are class I legal
heirs in the suit schedule property. Undisputedly, the
Agreement of Sale- Ex.-A1 is executed only by defendant Nos. 1
and 2. The 3rd son, mother and 3 sisters who have got equal
shares in the property have not executed the Agreement of
Sale. In view of the matter, the Agreement of Sale executed by
defendant Nos. 1 and 2 who have no absolute right to property
in question cannot confer any right whatsoever upon the
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Agreement of Sale in their favour. The said agreement is not
enforceable in law in view of Section 17 of the Specific Relief
Act in view of right accrued in favour of defendant Nos. 3 to 6
under Section 8 of the Hindu Succession Act. The provisions of
Section 17 of the Specific Relief Act in categorical term
expressly state that a Contract to sell or let any immovable
property cannot be specifically enforced in favour of a vendor
or lessor who does not have absolute title and right upon the
party. It is worthwhile to extract Section 17 of the Specific
Relief Act,1963 here :-
“17.-Contract to sell or let property by one who has no title,
not specifically enforceable.- A contract to sell or let any
immovable property cannot be specifically enforced in favour of
a vendor or lessor;
(a) who, knowing not to have any title to the property, has
contracted to sell or let the property
(b) who, though he entered into the contract believing that he
had a good title to the property, cannot at the time fixed by
the parties or by the court for the completion of the sale or
letting, give the purchaser or lessee a title free from reasonable
doubt.”
In view of the aforesaid provisions of the Specific Relief Act,
the Agreement of Sale entered between the plaintiffs and some
of the co-sharers who do not have the absolute title to the suit
schedule property is not enforceable in law. This aspect of the
matter has not been properly appreciated and considered by
both the First Appellate Court and the Second Appellate Court.
Therefore, the impugned judgment is vitiated in law.
[30] Even assuming for the sake of argument that the
agreement is valid, the names of three sons are mentioned in
Agreement of Sale, out of whom the agreement is executed by
defendant Nos. 1 and 2 and they assured that they would get
the signatures of the 3rd brother namely, Srinivasa Rao and
also the remaining 3 sisters. At the time of execution of this
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agreement signatures were not obtained. Therefore, the
agreement is not executed by all the co-sharers of the property
which fact is evident from the recitals of the document itself.
Hence, the plaintiffs are not entitled for specific performance
decree. This vital factual and legal aspect has been ignored by
both the First Appellate Court and the Second Appellate Court.
Therefore, the impugned judgment is vitiated both on facts and
law. Accordingly, the point No. 1 is answered in favour of the
defendants.”
(emphasis supplied)
16.2 Even in a case of Janardhan Das (supra), also it has been
held as under,
“[17] The plaintiffs were cognizant of the fact that Defendant Nos.
6 to 8 were not parties to the agreement and that their willingness
and participation were necessary for a valid sale. This is further
corroborated by the plaintiffs’ own admissions that they were
assured by Defendant No. 1 and late Soumendra that the sisters
would be brought to execute the sale deed. Thus, the plaintiffs
cannot claim that they believed Defendant No. 1 had the authority
to bind the sisters without their explicit consent. The appellants
have rightly pointed out that an agent’s authority must be explicit,
and any limitations or revocations thereof must be given due
consideration. In the absence of a valid and subsisting power of
attorney authorizing Defendant No. 1 to sell the property on behalf
of Defendant Nos. 6 to 8, the agreement cannot be enforced
against them.
[18] In view of the above, we hold that Defendant No. 1 lacked
the authority to bind Defendant Nos. 6 to 8 in the agreement to
sell dated 06.06.1993. The General Power of Attorney did not
confer upon him the power to sell the property on behalf of his
sisters at the time of the agreement, having been impliedly revoked
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by the partition deed. The agreement was, therefore, incomplete
and unenforceable against Defendant Nos. 6 to 8, who collectively
held a majority share in the property. The plaintiffs’ knowledge of
the necessity of obtaining the sisters’ consent, coupled with their
failure to secure such consent, renders the agreement ineffective
against Defendant Nos. 6 to 8. Consequently, the agreement cannot
be specifically enforced against them, and the plaintiffs cannot
claim any right over their shares in the property based on the said
agreement.
[19] The relief of specific performance under the Specific Relief
Act, 1963, is discretionary in nature. Section 20 of the Act
(applicable to this case as it predates the 2018 amendment)
explicitly stated that the court is not bound to grant such relief
merely because it is lawful to do so. The discretion must be
exercised judiciously and based on sound principles, ensuring that
granting specific performance is just and equitable in the
circumstances of the case.
[20] In the present case, several factors weigh against granting
specific performance. The agreement to sell was incomplete and
unenforceable against Defendant Nos. 6 to 8, who held a majority
share in the property; enforcing such an agreement would be
inequitable. The plaintiffs failed to demonstrate readiness and
willingness to perform their obligations and did not take necessary
steps to secure the consent of all co-owners. Granting specific
performance would unfairly prejudice the defendants, especially
Defendant Nos. 6 to 8, who never consented to the sale to the
plaintiffs. Furthermore, the plaintiffs can be adequately
compensated by a refund of the earnest money with interest; there
is no evidence to suggest that monetary compensation would not
suffice.
[21] Section 20 of the Specific Relief Act, 1963 prior to amendment
by Act No. 18 of 2018 which was brought into effect w.e.f.
1.10.2018 categorically provided that the relief of specific
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performance is discretionary in nature and the court is not bound
to grant such relief merely because it is lawful to do so. But the
discretion Page 24 of 26 of the court has to be on sound and
reasonable principles.”
emphasis supplied)
16.3 Opposing the aforesaid arguments, learned senior counsel
Mr. Kavina, in his eloquent style, responded that Section 17
of the Specific Relief Act is not applicable to the facts of the
present case as the plaintiff is neither a vendor nor a lessor.
Learned Senior Counsel Mr. Kavina respectfully submitted that
the observations made by the Honourable Apex Court and
answers given to point no. 1 in the case of Peemmada
Prabhakar (supra) by considering Section 17 of the Specific
Relief Act is complete misreading of such provision and could
not have been applied against plaintiff who was vendee/lessee.
Thus, learned Senior Counsel Mr. Kavina would submit that
the decision of the Honourable Apex Court in the case of
Peemmada Prabhakar (supra) should not be considered by this
Court as it would not be correct position of law.
16.4 Learned senior counsel Mr. Kavina, tried to distinguished
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the decision of Janardhan Das (supra), would contend that it is
not absolute proposition that in a case where all co-owners are
not signatory to agreement for sale, such agreement is non-
executable against those are signatory. He would emphasis
upon S. 44 of Transfer of Property Act read with S. 13 of
Specific Relief Act. According to him, at least Court can grant
partial relief of performance qua signatory to agreement.
17. At first glance, the arguments, canvassed by learned Senior
Counsel Mr. Kavina, appear attractive, but they require
rejection due to the following reasons.
17.1 In Peemmada Prabhakar (supra), after referring to Section
17 of the Specific Relief Act, it is clearly held by Honourable
Apex Court that as per Section 17 of the Specific Relief Act,
the agreement of sale entered into between the plaintiffs and
some of the co-sharers, who do not have absolute title over
the property, is not enforceable in law. At the time of
execution of the agreement, the signatures of all co-sharers
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were not obtained; therefore, the agreement was not executed
by all co-sharers of the property. Hence, it was held in that
case that the plaintiffs are not entitled to a decree of specific
performance.
17.2 When there is a clear pronouncement of law by the
Honourable Apex Court, this Court cannot take a contrary
view. As an obedient soldier, it is required to follow the
decision of the Apex Court in its true letter and spirit which is
mandate of Article 141 of Constitution of India.
17.3 The relief claimed in present suit is for seeking
performance of agreement for sale of entire land which was
subject matter of the agreement and no alternative relief has
been prayed by plaintiff seeking specific performance of
agreement qua share of executors in suit land then, in absence
of such prayer and having not relinquishing right to claim
performance qua non-signatory to agreement, it would not be
appropriate for the Court to grant reliefs as stand today.
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17.4 Thus, in view of aforesaid, in the present case also,
where, undisputedly, there are six co-owners of the suit
property and the agreement for sale was executed and signed
by only three co-sharers, applying the ratio in the case of
Peemmada Prabhakar (supra) and Janardhan Das (supra) to
facts of present case, the plaintiff is not entitled to a decree of
specific performance as the agreement to sell was incomplete and
unenforceable against Defendant Nos. 1, 5 & 7 who held a equal share in
the property, enforcing such an agreement would be inequitable.
17.5 This would be another ground whereby it can be held
that the plaintiff has no prima facie case.
Readiness and Willingness
18. Learned senior counsel Mr. Kavina would submit that the
plaintiff was always ready and willing to perform his part of
the contract, but the defendants, executors have never acted
and fulfilled their obligations as per the terms of the
agreement. Learned senior counsel Mr. Kavina would further
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submit that the plaintiff was not made aware that there were
other three co-sharers/co-owners of the suit property. The
signatories to the agreement assured the plaintiff that whatever
consent of other persons was required to perform the
agreement would be undertaken by them.
18.1 Learned senior counsel Mr. Kavina would further submit
that the plaintiff was not informed about the communication
dated 01.04.2019 of AMC and was never informed by the
defendants to deposit betterment charges and other charges as
demanded by AMC. Learned senior counsel Mr. Kavina would
further submit that, vide letter dated 14.12.2020, the plaintiff
explicitly requested executors to obtain an appropriate
authority letter from Mohammadiya Charitable Trust and
complete the necessary formalities. Thereafter, the plaintiff
could proceed with his obligations and perform his part of the
contract.
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18.2 Learned senior counsel Mr. Kavina would submit that
instead of accepting the request made by the plaintiff, the
executors replied on 30.12.2020, thereby canceling the
agreement of sale and alleging that the plaintiff was not
financially capable of fulfilling his part of the contract. Thus,
learned senior counsel Mr. Kavina would submit that the
plaintiff was always ready and willing to perform his part of
the contract throughout.
18.3 However, learned counsel appearing for the defendants
vehemently objected to these submissions and tried to show
that the conduct of the plaintiff, even after execution of the
agreement for sale and the supplementary agreement dated
19.02.2019, indicates that he never fulfilled his obligations.
According to learned counsel appearing for the defendants, the
plaintiff was never ready and willing to perform his part of the
contract, thereby making him ineligible for a decree of specific
performance.
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18.4 Learned counsel appearing for the defendants would draw
the attention of this Court to the fact that, as per the
agreement of sale, the plaintiff was required to deposit
betterment charges and bear all related expenses. The plaintiff
appointed an engineer consultant who undertook the process of
obtaining necessary permissions from AMC. However, when
AMC issued a communication dated 01.04.2019 demanding
betterment charges and other costs to be paid within 15 days,
the plaintiff’s failure to pay such amounts itself shows that he
was not in a financial position to comply with the agreement
at the relevant time.
18.5 Prima facie, after reviewing the exchange of letters
between the plaintiff and the signatories of the agreement, it
appears that the plaintiff was required to obtain necessary
permission from AMC before developing the suit property and
bear all the required charges. When the plaintiff had already
engaged an engineer consultant for obtaining AMC’s
permission, it is difficult to believe that he was unaware of the
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communication dated 01.04.2019 issued by AMC to the trust.
In fact, plaintiff’s own communication dated 14.12.2020
address to executors wherein he admitted that he has
appointed civil engineer and received details/amount of
betterment charges from AMC. So, the consultant engaged by
the plaintiff must have apprised him of the said
communication of AMC (01.04.2019), but surprisingly till
14.12.2020, nothing has been done by plaintiff.
18.6 It remains undisputed that as per the terms of the
agreement, the plaintiff was required to deposit the charges
stipulated by the AMC. It has not come on record what steps
have been taken by the plaintiff between 01.04.2019 till
05.12.2020. This would suggests that the plaintiff was not
ready and willing to perform his part of the contract.
Therefore, the defendants are well within their rights to
contend that the plaintiff was not ready and willing to perform
his part of the contract.
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18.7 At this stage, it is also necessary to observe that,
subsequent to the cancellation of the agreement for sale, the
plaintiff responded with a letter dated 05.01.2021 sent from
the USA, followed by a legal notice dated 19.01.2021. It
appears that the plaintiff was well aware of the other co-
sharers of the suit property since inception. Thus, in absence
of any further evidence, this Court is not inclined to accept the
plaintiff’s argument that the signatories to the agreement for
sale had concealed information regarding the right, title, and
interest of other co-sharers.
18.8 It remains undisputed that the betterment charges and
other costs were deposited by the defendants with AMC on
13.07.2021, and a reply was issued to the plaintiff on
14.07.2021. It appears that due to passage of time, AMC has
demanded more charges which is in fact deposited by
defendants. At that stage, the plaintiff rushed to the court by
filing the suit on 20.07.2021.
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18.9 At this stage, it is apt to refer and to rely upon the
decision of the Honourable Apex Court in the case of R. Shama
Naik Versus G. Srinivasiah reported in 2024 SCC Online SC 3586
wherein it is held as under,
“10. The law is well settled. The plaintiff is obliged not only to
make specific statement and averments in the plaint but is
also obliged to adduce necessary oral and documentary
evidence to show the availability of funds to make payment in
terms of the contract in time.
11. There is a fine distinction between readiness and
willingness to perform the contract. Both the ingredients are
necessary for the relief of specific performance.
12. While readiness means the capacity of the plaintiff
to perform the contract which would include his
financial position, willingness relates to the conduct of
the plaintiff.”
(emphasis supplied)
18.10 So, considering the facts of the present case and the
ratio of R. Shama Naik (supra), it can be observed that the
plaintiff was not ready and willing to perform his part of the
agreement. In view of the above, when the plaintiff has prima
facie failed to show that he was ready and willing to perform
his part of the contract, the question of granting an injunction,
which is an equitable relief, is out of place.
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Balance of Convenience and Irreparable Loss
19. As far as the balance of convenience and irreparable loss
are concerned, when the plaintiff has not been able to show a
prima facie case, the question of entering into these two issues
is academic. Nonetheless, as there are several submissions
made by both sides on this aspect, this Court would like to
deal them.
19.1 Learned senior counsel Mr. Kavina would submit that
when three co-sharers out of six have entered into the
agreement, at least for half of suit properties, the plaintiff
would be entitled to specific performance. Learned senior
counsel Mr. Kavina would further submit that considering
Sections 43 and 44 of the Transfer of Property Act, the
plaintiff can ask for performance of the agreement thereby
balance of convenience is in favour of plaintiff.
19.2 Such arguments is already dealt with and answered by me
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in preceding paras. As such, considering entire set of facts and
event, conduct of plaintiff after execution of agreement for sale
till filing of suit would not remotely indicate that plaintiff was
in fact serious to perform his part of contract and in fact rush
to Court after charges/expenses deposited by defendants in
AMC thereby, balance of convenience was never on side of
plaintiff.
19.3 Prima facie, the plaintiff would not be able to bind other
co-owners or co-sharers of the suit property, who were not
signatories to the agreement for sale, and consequently, the
agreement for sale cannot be specifically enforced against
them. As observed in the aforesaid decisions, it is well settled
that granting a decree of specific performance is a
discretionary relief especially when the agreement for sale in
question was executed prior to the amendment in the Specific
Relief Act, 1963. Ultimately, the plaintiff must satisfy the trial
court by leading appropriate evidence, making his case made
out for grant of specific performance of the decree qua
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signatories to the agreement. In that situation, it would be for
the trial court to pass an appropriate discretionary relief, be it
granting performance of the decree qua the signatories of the
agreement for sale or compensating the plaintiff in terms of
money.
19.4 It is true that the plaintiff has not asked for any
alternative relief, either returning the money with interest and/
or damages, and has not even prayed for specific performance
of the decree qua the signatories of the agreement for sale in
question. However, as the suit is at its initial stage, issues are
yet to be framed, and evidence is yet to be laid by the parties,
it would be for the plaintiff to make the necessary
amendments in the plaint if he so desires and is advised
thereby, ask for appropriate reliefs as per provisions of Specific
Relief Act, 1963.
19.5 Be that as it may, considering the totality of the facts and
circumstances of the case and keeping in mind the ratio laid
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down by the Honourable Apex Court in above referred
decisions, since granting a decree of specific performance is a
discretionary relief, I am of the view that the balance of
convenience is not tilted in favour of the plaintiff.
20. So for as irreparable loss, it is a matter of record that the
defendant Nos.9 to 12 have not only paid betterment charges
and other charges to AMC but have also made substantial
investments. Necessary development and construction activities
have been carried out despite objections raised by the plaintiff
before AMC and RERA which were turn down and authorities
have granted development permission and RERA approval in
favour of the defendants. The construction activity is going on
since long and during pendency of injunction application, there
was no prohibitory order so far passed by trial Court.
20.1 Learned counsel appearing for the defendants have also
submitted that, in fact, by now more than Rs.10,00,00,000/-
have been spent by the defendants for the development of the
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suit property. Whereas, except for making a payment of
Rs.60,00,000/-, the plaintiff has not paid any charges to AMC
or demonstrated his capacity to bear other expenses.
20.2 Thus, in view of the above facts and circumstances of the
case, I am of the view that there would not be any irreparable
loss to the plaintiff rather granting an injunction in favour of
the plaintiff would definitely cause great hardship and loss to
the defendants.
20.3 The few judgments referred to by the learned counsel
appearing for the defendants clearly hold field that when there
is a substantive investment and ongoing construction activities
and delay in approaching Court by way of filing suit for
specific performance, ordinarily, the Court should not stop
such construction, as it would cause great hardship to the
party making such construction and thereby, not to grant any
injunction. I would like to accept submissions of defendants to
that effect and accordingly applied to the facts of the present
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case.
20.4 At the same time, the plaintiff, having already instituted
a suit and registered his lis pendens, if ultimately he succeeds
in the suit, may be compensated in terms of money. Thus,
there would not be any irreparable loss caused to plaintiff.
Contingent Contract
21. Learned senior counsel Mehul Shah has vehemently argued
that the agreement for sale in question is a contingent
contract. Considering Sections 31 and 32 of the Contract Act,
1872 when signatories of the agreement for sale are not in a
position to obtain consent of other co-sharers, such an
agreement is not executable.
21.1 Learned senior counsel Mr. Kavina has rebutted such
submissions by contending that the agreement cannot be said
to be a contingent contract and not enforceable in a case
where signatories of the agreement were not able to get
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consent of other co-sharers.
21.2 Prima facie, argument so canvassed by learned Senior
Counsel Mr. Shah need not acceptance as it is fairly well
settled that in a case of agreement for sale, ordinarily
obligation cast upon vendor to fulfill his obligation by
obtaining permission and having failed to do so, it would not
itself deny right of vendee to seek performance of it. It is
profitable to refer and to rely upon recent decision of the
division bench of this Court in a case of Sentinel Properties
Private Limited v/s Legal Heir of Deceased Atul Dhirajlal Amin
Viral Atulbhai Amin s/o Late Autlbhai Amin reported in 2024
GUJHC 50071 wherein observed as under,
“[71] On the question as to whether the agreements were
contingent contract or contract creating absolute liabilities between
the parties without contemplating any contingency, it is clear that
the agreements clearly contemplated that the sale deeds were to be
executed after the requisite permission was obtained from the
Collector for transfer of the lands in question to a non-agriculturist
and that without permission, the land was not to be sold. The
question is whether the Court or the arbitrator has jurisdiction to
pass a contingent or conditional decree of specific performance
directing the vendor to seek necessary permission and execute sale
deed.
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[72] In Rojasara Ramjibhai Dahyabhai vs Jani Narottamdas
Lallubhai, 1986 3 SCC 300, the appellant had entered into an
agreement to purchase plots recorded as Girasdar agricultural land
of which he was a tenant from Girasdari. The agreement stipulated
that the appellant was to apply for permission from the Collector
to convert the agricultural land into village site, i.e., for non-
agricultural use. The sale deed was executed by the appellant after
he had obtained the requisite permission from the Collector within
one month from the agreement with the Girasdar, by a contract
covenanted to sell the property to another person. The agreement
provided that the appellant as a vendor was to get the land
converted into village site at his own expenses. The appellant
applied to the Collector for grant of permission to convert the land
into village site, but his application was rejected. In the meantime,
the Saurashtra Land Reforms Act, 1951 came into force with effect
from 01.09.1951 and the appellant was recognised to be an
occupant thereof under the provisions of the Bombay Land
Revenue Code, 1898. The appellant thereafter, obtained permission
for converting the land both as plots for non-agricultural use. The
respondent then called upon the appellant to execute the
conveyance of the property in accordance with the agreement to
sell between the parties and on his failure to comply, the suit for
specific performance was instituted.
[73] The appellant therein contested the suit on two grounds,
firstly that he had an imperfect title and secondly that the contract
with the respondent was contingent contract dependent on
appellant’s vendor (Girasdar) obtaining permission for conversion of
land. The civil judge dismissed the suit holding that the same was
barred by limitation and further that the contract between the
parties being a contingent contract, the agreement in view of the
events that had happened made it unenforceable. On an appeal,
the High Court reversed the decree and held that the agreement
between the parties had not been cancelled by mutual consent. On
the question whether the agreement was a contingent contract, it
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was held by the Apex Court that there is always in such a contract
implied covenant on the part of the vendor to do all things
necessary to give effect to the agreement including obtaining of the
permission for the transfer of the property.
[74] The decision of the Privy Council in Motilal v. Nanhelal
Ghasiram, 1930 AIR (PC) 287. was relied therein to observe that it
is an authority for the proposition that if the vendor agrees to sell
the property which can be transferred only with the sanction of
some Government authority, the Court has jurisdiction to order the
vendor to apply to the authority within a specified period, and if
the sanction is forthcoming to convey to the purchaser within a
certain time. The law is well settled in this regard. Ref: Motilal v.
Nanhelal Ghasiram, 1930 AIR(PC) 287, Chandnee Widya Vati
Madden Vs C.L.Katial & Others, 1964 AIR(SC) 978, Rojasara
Ramjibhai Dahyabhai Vs Jani Narottamdas Lallubhai (dead) by
L.Rs., & others, 1986 3 SCC 300. and R. C. Chandiok & Anr vs
Chuni Lal Sabharwal, 1971 AIR(SC) 1238.
[75] It is settled that in the agreement to sell, when the vendor
had agreed to do certain acts and things, there is an implied
covenant on the part of the vendor to do all things necessary to
give effect to the agreement, including the obtaining of permission
or clearance for the transfer of the property.
[76] In Govindbhai Gordhanbhai Patel & Ors vs Gulam Abbas
Mulla Allibhai, 1977 3 SCC 179 [1977], while dealing with Section
63 of the Bombay Tenancy Act, the Apex Court had considered the
question as to whether the performance of the contract therein
became impossible, rather it became impracticable on the refusal
of the Prant Officer to grant the permission under Section 63 of
the Act. It was argued before the Apex Court that the contract was
contingent upon the grant of permission by the Prant Officer and
on refusal thereof, the parties would be governed by Section 56 of
the Contract Act, according to which, a contract becomes void if
something supervenes after its execution which renders it
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impracticable. While answering the question whether the order of
the Prant Officer rendered the contract impracticable, it was noted
by the Apex Court that the said order was not of such a
catastrophic character as can be said to have struck at the very
root of the whole object and purpose for which the parties had
entered into the bargain in question or to have rendered the
contract impracticable or impossible of performance.
[77] It was held therein that a careful perusal of the order of the
Prant Officer indicated that it was not conclusive nor was based on
the merits of the application seeking permission, rather refusal was
on technical ground which do not prohibit the appellant from
making a fresh application to the Collector in view of Section 63
of the Tenancy Act. It was, thus, concluded that since the order of
the Prant Officer therein did not put any fetter on the appellant to
apply to the Collector or the Additional Collector for grant of the
requisite permission for sale and purchase of the land after
obtaining the aforesaid certificate, no untoward event or change of
circumstances supervened to make the agreement factually or
legally impossible of performance so as to attract Section 56 of the
Contract Act.
[78] In Mrs. Chandnee Widya Vati Madden (supra), the Apex Court
had discussed Section 12 and Section 21 of the Specific Relief Act,
1877. In the said case, one of the terms of the contract of sale of
a house on the plot granted by the Government was that the
vendor shall obtain necessary permission of the Government for
sale within two months of the agreement and if the permission was
not forthcoming within that time, it was open to the vendor to
extend the date or to treat the agreement as cancelled. The vendor
made an application, but for the reasons of her own withdrew the
same. In the suit filed by the vendees for specific performance of
the contract or in the alternative for damages, it was found that
the vendees were always ready and willing to perform their part of
the contract and that it was the vendor who willfully refused to
perform her part of contract and that the time was not of the
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essence of the contract. The Supreme Court, thus, has held that
the High Court was correct in decreeing the suit for specific
performance of the contract and has held that the main ground of
attack in the appeal was that the contract was not enforceable
being of a contingent nature and the contingency having not been
fulfilled, was without substance.
[79] It was observed therein that so far as the parties to the
contract are concerned, they have agreed to bind themselves by
the terms of the documents executed between them. Under that
document, it was for the defendant vendor to make necessary
application for the permission to the Chief Commissioner. For the
reason best known to the defendant vendor, though such an
application was made, but the vendor decided to withdraw the
same. On the finding that the plaintiffs have always been ready
and willing to perform their part of the contract and that it was
the defendant who willfully refused to perform her part of the
contract and that the time was not of the essence of the contract,
the Court has directed to enforce the terms of the contract and to
enjoin upon the defendant-appellant to make the necessary
application to the Chief Commissioner or such other competent
authority as may have been empowered to grant the necessary
sanction to transfer within the time prescribed therein. It was
further held that the High Court was entirely correct in decreeing
the suit for specific performance of contract with the above
direction and further that in the event of the sanction being
refused, the plaintiff shall be entitled to the damages as decreed by
the High Court.
[80] The general principle is that if a condition is laid down that
the transferor is bound to do everything to give effect to the
contract, specific performance can be obtained with a direction to
the transferor to obtain the requisite consent or permission. The
principle is that unless and until the transaction itself is unlawful,
it may be enforced directing the defendant/transferor to take such
steps as are necessary for affecting the contract. The principle is
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that if the vendor has agreed to sell the property, which can be
transferred only with the sanction of some Government authority,
the Court has jurisdiction to order the vendor to apply to the
authority and if the sanction is not forthcoming, to convey to the
purchaser the same, but on the ground that the sanction is not
available, decree for specific performance cannot be refused. It is
settled that when permission from some authority is required to be
obtained, prior obtaining of the same is not a condition precedent
for grant of decree for specific performance, if after grant of the
decree permission can be obtained. The conditional decree for
specific performance can be granted making it subject to obtaining
permission or exemption, as contemplated in the Statute. The relief
can be moulded to such an extent that the vendor is required to
obtain permission or consent. It has been the consistent view that
on the ground of non-availability of consent or permission, the
vendor cannot avoid such an agreement. There are series of
judgments of various High Courts, following the principles laid
down in Mrs. Chandnee Widya Vati Madden (supra). Reference
may be made to Khan Bhadur C.B. Taraporwala vs. Kazim Ali
Pasha, 1966 AIR(AP) 361, Indra Prasad Saxena vs. Chaman Lal
Malik, 1994 AIR(ALL) 105, Shri Rajesh Aggarwal vs. Shri Balbir
Singh, 1994 AIR(Del) 345, Rameshwarlal vs. Dattatraya, 2010
AIR(MP) 187.”
(emphasis supplied)
21.3 As such, at this stage, this Court would not like to finally
opine on this issue raised by the defendants, as evidence is yet
to be led by the parties. So without much deliberation on it,
such issue is kept open to be decided by trial Court on
completion of the trial and be decided as per the evidence
comes on record albeit, in accordance with law.
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Reliefs prayed in Exhibit 15 & 59.
22. Lastly, the plaintiff has not been able to show that he was
put in possession by the signatories of the agreement. As such,
the Panchnama drawn during the course of the injunction
application does not indicate the possession of the plaintiff.
Therefore, granting any relief, as prayed for in his application
filed below Exhibit 15, is out of place.
22.1 Likewise, having no prima facie case found in favour of
the plaintiff and possession in his favour, granting of any
relief, as prayed for in his other application filed below Exhibit
59, thereby stopping defendant nos.9 to 12 from making
construction, is also not required to be granted in light of the
above observations and discussions.
Conclusion.
23. The upshot of the aforesaid discussions, observations and
reasons leads to only one conclusion that the plaintiff has
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miserably failed to prove any prima facie case as he has not
challenged the cancellation of the agreement of sale by the
executors of the agreement for sale vide their letter dated
14.12.2020 and the agreement for sale is not executed by all
co-sharers/co-owners of suit property.
23.1 Having so observed herein above and forgoing reasons, as
on date in absence of challenge of cancellation of agreement
for sale by plaintiff, suit itself is held to be not maintainable
as no relief can be granted of specific performance in respect
of the suit property on the basis of non-existing the agreement
for sale.
23.2 As observed hereinabove and forgoing reasons, prima
facie, the defendants are able to show that plaintiff was and
is, not ready and willing to perform his part of the contract.
23.3 After examining the totality of the facts and circumstances
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of the case, as well as the law laid down by the Honourable
Apex Court as referred hereinabove, the balance of
convenience and irreparable loss are also not found in favour
of the plaintiff.
23.4 Having not found any substance in the appeal filed
against refusal of granting injunction below Ex.5, consequently
for forgoing reasons, not found any substance in rest of
impugned applications filed below Ex. 15 & 59.
23.5 At the end, this Court is of the opinion that considering
the scope and ambit of Order XLIII Rule 1 of the Code of Civil
Procedure, 1908 and keeping in mind the ratio laid down by
Wander Ltd. v. Antox India Pvt. Ltd. and Rasiklal Choksi
(supra), there is no need to interfere with the impugned
common order passed by the trial court albeit, observing that
trial Court has erroneously observed that plaintiff has made out
prima facie case.
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24. Before parting with the order, it is clarified that this Court
has examined the impugned common order passed by the
learned trial Court within the limited scope of interference as
per Order XLIII Rule 1 (r) of the CPC as well as judging the
issues as per prayers made in suit stand as on date. Whereas,
the main controversy involved in the suit is pending at large
before the trial Court to be adjudicated through full-fledged
trial. Therefore, the learned trial Court shall not be influenced
by any observations recorded in its common order impugned in
these appeals and or by this Court in present judgement/order
while deciding the suit at the end of trial.
25. The findings recorded either by the trial Court or by this
Court at interlocutory stage of the suit are tentative in its
nature and the learned trial Court shall decide the case on its
merit and as per evidence that may be laid by parties during
the course of trial and accordingly, decide the suit in
accordance with law.
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26. Thus, in view of the aforesaid reasons, the present appeals
are found merit-less, require to be dismissed, and the same are
hereby DISMISSED. There shall be no order as to costs.
27. All Civil Applications are disposed of accordingly.
Sd/-
(MAULIK J.SHELAT,J)
DRASHTI / MONIS
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