IMPORTANT POINT
A suit simpliciter for specific performance of an agreement and Memorandam for sale of immovable property i.e. for a declaration that they are binding on defendant/appellant and a decree for the enforcement of the contract of sale and for execution of a conveyance wherein relief of delivery of the suit property has not been specifically claimed as such, it cannot be treated as a suit for land or immovable property within clause 12 of Letters Patent of the High Court of Judicature at Bombay.

Headnote:Clause 12 of Letters Patent of Bombay High Court-Original Juridiction as to suits-Specific Relief Act, 1963-Section 22-Power to grant relief for possession, partition, refund of earnest money etc.-Whether a suit simplicitor for specific performance of contract for sale of immovable property situated at Indore, (M.A.) is a "suit for land" within clause 12 of Letters Patent of the High Court of Judicature at Bombay (and thus Bombay High Court has us jurisdiction because it is not situated within its jurisdiction? (No)-It is any other case in which part of cause of action has either arises in the ordinary original jurisdiction of Bombay High Court or defendant dwells or carries on business in limits of Bombay High Court and suit can be filed with permission-Scope of clause 12-Scope of Section 22 Specific Relief Act-Present case-Suit for declaration that agreement and Memorandum are subsisting and binding on defendant/appellant and a decree for specific performance of the said agreement and memorandum-Whether suit for land ? (No)-Appeal dismissed-Case law referred.
       Held : It is clear that under clause 12 of the Letters Patent, the High Court in exercise of its ordinary original jurisdiction will have power to receive, try and determine : (1) suits for land or other immovable property if such property is situated within the local limits of original jurisdiction of the High Court; or (2) all other cases (a) if the cause of action has arisen wholly within the local limits of the ordinary original jurisdiction of the High Court; (b) if prior leave of the Court has been obtained and the cause of action has arisen in part within the local limits of the ordinary original jurisdiction of the High Court; or (c) if the defendant dwells or carries on business or personally works for gain within such limits. (Para 9)
       After discussing case law :
       Held : From the above discussion it follows that a "suit for land" is a suit in which the relief claimed relates to title to or delivery of possession of land or immovable property. Whether a suit is a "suit for land" or not has to be determined on the averments in the plaint with reference to the reliefs claimed therein; where the relief relates to adjudication of title to land or immovable property or delivery of possession of the land or immovable property, it will be a "suit for land". We are in respectful agreement with the view expressed by Mahajan, J. in M/s.Moolji Jaitha s case, AIR (37) 1950 FC 83. In a suit for specific performance of contract for sale of immovable property containing stipulation that on execution of the sale deed the possession of the immovable property will be handed over to the purchaser, it is implied that delivery of possession of the immovable property is part of the decree of specific performance of contract. But in this connection it is necessary to refer to Section 22 of the Specific Relief Act 1963. (Paras 14 & 15)
       Held further : The mandate of sub-section (2) of Section 22 is that no relief under clauses (a) and (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed. Thus it follows that no court can grant the relief of possession of land or other immovable property, subject-matter of the agreement for sale in regard to which specific performance is claimed, unless the possession of the immovable property is specifically prayed for. In the instant case the suit is for specific performance of agreement for sale of the suit property wherein relief of delivery of the suit property has not been specifically claimed as such it cannot be treated as a "suit for land". We cannot also accept the contention of Mr. Chitale that the suit is for acquisition of title to the land and is a suit for land". In its true sense a suit simpliciter for specific performance of contract for sale of land is a suit for enforcement of terms of contract. The title to the land as such is not the subject-matter of the suit. In this view of the matter, we do not find any illegality in the order of the Division Bench of the Bombay High Court under challenge. The appeal is dismissed but in the circumstances of the case without costs. (Paras 16, 17, 18 & 19)

JUDGMENT

Syed Shah Mohammed Quadri, J.-This appeal, by special leave, raises an interesting question : whether a suit simpliciter for specific performance of contract for sale of immovable property is a "suit for land" within clause 12 of Letters Patent of the High Court of Judicature at Bombay?

2. The appellant is the defendant and the respondents are the plaintiffs in the suit out of which this appeal arises. In this judgment the parties will be referred to as they are arrayed in the trial court.

3. The facts lie in a narrow campus and are not in dispute. By an agreement of July 12, 1986 land together building known as "Vithal Bhavan", bearing No.6/5 (Block No.24), South Tukoganj, Indore, M.P., (for short, the suit property ) was agreed to be sold by the defendant to the plaintiffs for a consideration of Rs. 53,75,000/-. Subsequently the parties executed a memorandum also in regard to the suit property on August 1, 1987. Disputes arose between the parties with regard to the performance of the said agreement. The plaintiffs filed Suit No. 1088 of 1989 in the High Court of judicature at Bombay (for short, the High Court ) against the defendant praying, inter alia, for a declaration that agreement dated July 12, 1986 and memorandum dated August 1, 1987 are subsisting and binding on the defendant and for a decree of specific performance of the said agreement and memorandum. The suit was filed with the leave of the court under clause 12 of the Letters Patent of the High Court of Judicature of Presidency of Bombay (referred to in this judgment as the Letters Patent ). A learned single Judge of the High Court granted leave on April 4, 1989. The defendant took out chamber summons No. 862 of 1989 in the suit for revocation of the leave granted to the plaintiffs. The learned single Judge dismissed the chamber summons on January 22, 1990. That order was assailed by the defendant in L.P.A. No.697 of 1990. A Division Bench of the High Court dismissed the L.P.A. on July 30, 1990. It is that order of the Division Bench which is under challenge in this appeal.

4. Mr. A.K. Chitale, the learned senior counsel appearing for the defendant (appellant), has argued that in the agreement there is specific stipulation that the defendant will hand over possession of the suit property on the execution of the sale deed, therefore, the suit for specific performance of the agreement would be a "suit for land" within the meaning of clause 12 of the Letters Patent. In any event, submitted the learned counsel, acquisition of title to any immovable property would also fall within the meaning of "suit for land" and, therefore, the High Court erred in not revoking the leave.

5. Ms. Manik Karanjawala, the learned counsel who was appearing for the plaintiffs (respondents), sought permission to withdraw from the case for the reason that her clients asked her not to appear in the appeal. We permitted her to withdraw from the case.

6. Inasmuch as the plaintiffs remained unrepresented we requested Mr. A.S. Bhasme, Advocate, to assist the court as amicus curiae. The learned counsel readily accepted the responsibility and very ably argued the appeal for the plaintiffs. His contention is that as sub-section (2) of Section 22 of the Specific Relief Act, 1963 directs that relief of possession in addition to specific performance of the agreement should not be granted by court unless it has been specifically claimed therefore a suit for specific performance simpliciter in the absence of a explicit prayer for delivery of possession of the suit property, can not be treated as a "suit for land".

7. It will be appropriate to refer to clause 12 of Letters Patent which reads thus :

"12. Original Jurisdiction as to suits.

And We do further ordain that the said High Court of Judicature at Bombay, in the exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try, and determine suits of every description, if, in the case of suits for land or other imm

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2001 Supreme(SC) 1272

Cases Referred (1)