Shri Vinod S/O Radheshyam Dubey v. Chandulal S/O Laddhaji Tilwa and Another

Bombay HC11 Jul 2011LPA/281/2011

Case brief

AI extract

What is this about?

The court rejected a civil appeal challenging the granting of relief in execution of a specific performance decree. It held that since the plaint did not assert possession on filing, the grant of possession under Section 22(2) was correct and the amendment was by way of precaution. The case was distinguished from a Supreme Court decision due to factual differences.

What did the court decide?

Application for leave to appeal (LPA) against Single Judge's order allowing amendment for recovery of possession is rejected.

Shri Vinod S/O Radheshyam Dubey Vs Chandulal S/O… — Specific Performance | Bombay HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR

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LPA NO.281/2011 IN WP NO.948/2011 (D)

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[Vinod Radheshyam Dubey .vrs. Chandulal Laddhaji Tilwa]

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................................................................................................................................................................... Office Notes, Office Memoranda of

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Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders

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CORAM : B.P. DHARMADHIKARI AND P.D. KODE, JJ.

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DATE : JULY 11, 2011.

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Heard.

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Shri Srivastava, learned counsel for the appellant, a subsequent purchaser in a suit for specific performance of contract, states that in a suit, there was no prayer for restoration of possession and there was no decree to that effect. In execution, as filed, there was no prayer for restoration for recovery of possession. He points out that plaint was containing assertion that the respondent/plaintiff was placed in possession by the vendor at the time of agreement for sale. In this background, decree was passed ex-parte. In execution warrant of possession was sought and came to be granted.

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The appellant lost the possession and, therefore,

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pointing out all these developments, the application for review was filed. In that review proceeding, respondent/plaintiff moved application and sought to incorporate prayer for possession. That came to be granted by the learned trial court and that grant has been maintained by the learned Single Judge of this court.

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By placing reliance upon the judgment of the Hon’ble Apex Court in the case of Raj Kishore (dead) by L.Rs. .vrs. Prem Singh and others, reported at 2011(3) Mh.L.J. 1 particularly paragraph 18, learned counsel for the appellant states that such amendment could not have been allowed. It is further urged that granting such relief also amounts to permit incorporation of prayer which is barred by limitation.

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Shri R.R. Rathod, learned counsel for the respondent/plaintiff supports the order. He states that provisions of Section 22(2) of the Specific Relief Act, 1963 have been looked into by both the Courts and, thereafter, the relief has been granted.

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After hearing respective counsel, we find that dispute is of purely civil nature. Not only this, in the judgment of Hon’ble Apex Court relied upon by the learned counsel for the appellant, plaint itself did not contain an assertion as required by Section 16(c) of the Specific Relief Act, 1963. In absence of that assertion, only amendment sought was about agreement for reconveyance and a prayer

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for decree for specific performance thereof. The High Court as also Hon’ble Apex Court found that in absence of such averment in specific performance suit, amendment in plaint could not have been allowed. The above judgment has no application here.

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We have perused the plaint here. In the plaint, the plaintiff/respondent no.1 has in paragraph 5, stated that “defendant had handed over the possession”. Thus, there is no assertion that on the date of filing of suit, plaintiff/respondent no.1 was in possession. The prayer is for decree for specific performance of contract dated 22.3.1990 commanding defendant to execute and register sale deed. In execution as filed again the help of Court is sought for execution of sale deed of property. This prayer, under provisions of Section 22(2) of the Specific Relief Act, 1963, therefore, clearly shows that the possession could have been and has been rightly handed over by issuing warrant of possession. The subsequent amendment moved by plaintiff/respondent no.1 is only by way of abundant precaution. We do not find any error in the impugned order passed by the learned Single Judge. LPA is, therefore, rejected.

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JUDGE

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JUDGE

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Gulande

Shri Vinod S/O Radheshyam Dubey v. Chandulal S/O Laddhaji Tilwa and Another

Case brief

What is this about?

What did the court decide?

Shri Vinod S/O Radheshyam Dubey v. Chandulal S/O Laddhaji Tilwa and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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Coram

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