Important point
Grant of specific relief was a discretionary relief and was not as a matter of right.

Headnote:Specific Relief Act, 1963—Section 16—Specific performance—Grant of relief is a discretionary and not as a matter of right—Initially respondent-plaintiff filed suit for injunction—By amendment he got relief of specific performance of sale of suit property added in 1980—Trial Court found suit beyond its pecuniary jurisdiction and directed return of plaint to be presented in Court of competent jurisdiction—Respondent-plaintiff did not take any steps and then moved interim application before trial Court in 1987 for return of plaint—Court directed return of plaint to be presented in competent Court in a week—Order was set aside by High Court in revision and SLP was dismissed by Supreme Court—Respondent moved another interim application before trial Court to treat the suit as fresh suit and Court dismissed the application—High Court allowed the revision—Appeal—Impugned order could not be sustained—Present attempt of respondent was an attempt in nature of second review of earlier order.
Held : In our view, the High Court erred in reversing the order passed by the Principal Sub Judge. The impugned order cannot be sustained because that the earlier order dated 6.11.1987 passed by the High Court setting aside the order dated 28.4.1987 passed in I.A.No. 1019 of 1987 in O.S.No. 187 of 1980 by the Munsif Court had become final and binding between the parties with the dismissal of the Special Leave Petition by this Court on 11.5.1998. The said order could not be re-opened at the instance of the respondents by merely filing an application i.e. I.A.No. 1168 of 1989 and that too with a prayer to treat O.S.No. 526 of 1987 as a fresh suit. The respondents because of their own conduct have amply demonstrated that the suit for specific performance would not be maintainable. This would be evident by the fact that the Munsif Court, while returning the plaint, had directed the respondents to re-present the plaint within a period of two months. The respondents did not comply with the said order. After seven long years, respondents chose to file I.A.No. 1019 of 1987 before the Munsif Court with a prayer that the plaint be returned to the plaintiff. The order passed by the Munsif Court on this application on 28.4.1987 granting a week’s time to re-present the plaint was held to be without jurisdiction by the High Court. Respondents by their default and long lapse of time had allowed third party rights to set in respect of the suit properties rendering the passing of the decree of specific performance inequitable and unjust. The grant of specific relief is a discretionary relief and is not as a matter of right. The High Court in its previous order had held that the prices had gone up a few times over the original price. Third party rights had also come into existence. Passing of a decree for specific performance would cause great prejudice to the appellants and that the respondents were not entitled to the relief for specific performance. This had become final between the parties. Review Petition No. 276 of 1988 filed by the respondents seeking review of the order dated 6.11.1987 was dismissed on 29.4.1998. The present attempt of the respondents was an attempt in the nature of a second review of the order dated 6.11.1987 which could not be permitted. By the impugned order, the Single Judge has virtually reviewed the earlier order passed by the High Court which it could not do. The learned Single Judge has proceeded in the matter as if it was hearing an appeal against the earlier order passed by the Single Judge in CRP No. 3226 of 1987 or as if it was sitting in review jurisdiction. (Paras 12 and 13)

Judgment

Bhan, J.—These appeals are directed against the common order dated 24.3.1998 passed by a Single Judge of the Madras High Court in CRP No. 2695 and 2696 of 1993 arising from an order dated 2.7.1993 passed by the Principal Sub Judge, Coimbatore in I.A.No. 1019 of 1987 in O.S.No. 187 of 1980 and I.A.No. 2100 of 1987 in O.S.No. 526 of 1987. The High Court has set aside the order passed by the Principal Sub Judge and remitted the case to the Munsif Court for a fresh decision in the light of the observations and directions given in the impugned order.

2. The facts are complicated and required to be set out in detail to appreciate the controversy arising in these proceedings.

3. The defendants-appellants (hereinafter referred to as “the appellants”) who were the owners of suit property measuring 4 acres 7 cents in Kurinchi Village, Coimbatore entered into an agreement with the plaintiffs-respondents (hereinafter referred to as “the respondents”) to sell the suit land for a sum of Rs. 2,15,710/- at the rate of Rs.53,000/- per acre. Respondents paid a sum of Rs.10,001/- as earnest money and the balance sale consideration was to be paid at the time of registration of sale deed which was to be completed within four months. As the respondents did not come forward to get the sale deed registered, the appellant No.2 by his letter dated 10.6.1979 informed the respondents that they have lost their right to get the sale deed executed under the agreement of sale. Notice terminating the agreement was also sent to the respondent through a lawyer on 12.9.1979.

4. Respondents filed OS No. 187 of 1980 in the Court of Principal District Munsif, Coimbatore seeking permanent injunction restraining the appellants from causing any obstruction or interference or prejudice to the plaintiffs/respondents by undertaking any construction activities on the suit land or by giving any access to the land or connecting the land with public road etc. Appellants in their written statement raised a preliminary objection regarding the maintainability of the suit. It was pleaded that a simple suit for permanent injunction was not maintainable in the absence of a prayer seeking specific performance of the agreement. In view of the objections raised by the appellants, respondents filed I.A.No. 1982 of 1980 to amend the plaint and seek specific performance of the agreement of sale dated 13.12.1978. Amendment as sought for was allowed vide order dated 13.12.1978. As the Munsif Court did not have the pecuniay jurisdiction to try a suit of the value of Rs. 2,15,710/-, plaint was ordered to be returned for presentation in the court of competent jurisdiction within a period of two months. The order reads:

“I.A.No. 1982 of 1980 allowed. Plaint claim Rs. 2,15,710/- pecuniary jurisdiction. Hence plaint returned for presentation to proper court. Time two month.”

5. Respondents kept quite for seven years. On 27.4.1987 respondents filed I.A.No. 1919 of 1987 in the Court of District Munsif, Coimbatore with a prayer to return the plaint. Prayer was in the following terms:

“For the reasons stated in the accompanying affidavit, the petitioner prays that this Hon’ble Court may be pleased to issue necessary orders for effecting delivery of the amended plaint in O.S.No. 187 of 1980 ordered by this Hon’ble Court to be returned to the petitioners and to grant other relief just and necessary in the circumstances of the case.”

6. On the very next day, i.e. 28.4.1987 the Principal District Munsif without giving any notice to the appellants passed the following order:

“plaint may be returned to the advocate as requested. One week time for re-presentation given.”

Respondents after paying the court fee on Rs. 2,15,710/- re-presented the plaint before the Vacation Civil Judge, Coimbatore and it was registered as O.S.No. 526 of 1987.

7. Aggrieved against the order dated 28.4.1987 in I.A.No. 1019 of 1987 the appellants filed CRP No. 3226 of 1987 in the High Court of Madras. High Court allowed the rev

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2005 Supreme(SC) 341

Important pointGrant of specific relief was a discretionary relief and was not as a matter of right.

Important point
Grant of specific relief was a discretionary relief and was not as a matter of right.