Important point
Relinquishment of claim as contemplated under Section 12(3)(ii) of Specific Relief Act as regards performance of remaining part of contract and all rights to compensation need not specifically be pleaded and can be made at any stage of litigation.

Headnote:Specific Relief Act, 1963—Section 12(3)—Specific performance of part of contract—Relinquishment of claim as contemplated under Section 12(3)(ii) of the Act as regard performance of remaining part of contract and all rights to compensation needed not be pleaded and could be made at any stage of litigation—Appellant entered into the agreement for sale on promise that he had requisite authority on behalf of his sister as also on his own behalf—Sister of appellant had not authorised him to enter into said agreement and Section 12(2) of the Act was attracted—Application by respondent-plaintiff to ament the plaint even in Supreme Court was maintainable and liable to be allowed—Decree for specific performance in respect of half share of appellant was rightly granted.
       Held : Section 12(3) of the Act is a beneficial provision so far as the purchasers are concerned. In the instant case, in view of the findings of fact arrived at by the High Court, the decree for specific performance of contract in respect of the entire suit land could not have been granted as the Appellant herein was not authorized by his sister to enter into the agreement for sale. The relinquishment of claim as contemplated under Section 12(3)(ii) of the Act as regard performance of the remaining part of the contract and all rights to compensation need not specifically be pleaded and can be made at any stage of the litigation . Such a plea can also be raised at the appellate stage. Delay by itself, it is trite, may not stand in the way of the plaintiff from claiming the relief unless the defendant establishes prejudice. (Para 9)
       In this case, however, the Appellant herein had entered into the aforementioned agreement for sale on the premise that he had the requisite authority to do so on behalf of his sister as also on his own behalf. The sister of the Appellant denied or disputed such authority and in that view of the matter, it is beyond any pale of doubt that the agreement for sale was entered into in respect of the entire suit land and having regard to the fact that the sister of the Appellant did not authorize him to enter into the said agreement, sub-section (2) of Section 12 of the Act would clearly be attracted. Kartar Singh (supra) should not be held to lay down a law to the effect that even in a case where a part of the contract is held to be invalid, Section 12 will have no application. The question which deserves consideration now is as to whether the application for amendment of plaint filed by the plaintiffs-Respondents should be allowed. Sub-section (3) of Section 12 does not lay down any limitation for filing such an application. Such an application can be filed at any stage of the proceedings and in that view of the matter an application even before this Court would be maintainable. (Paras 14 and 15)
       In view of the legal position and also in view of the statement made across the Bar including the application for amendment of plaint filed on behalf of the plaintiffs-Respondents in this Court, there cannot be any doubt that this Court can uphold the decree passed by the Division Bench of the High Court relying on or on the basis of such statement as also upon allowing the application for amendment of plaint. It may be true that in the application for amendment, there is no specific averment as contained in clause (ii) of sub-section (2) of Section 12 of the Act but the entire application, in our opinion, has to be read as a whole. The plaintiff-Respondents has referred to the prayers made in the plaint and has sought to substitute the same by a prayer as noticed hereinbefore and, thus, by necessary implication, the relief for obtaining compensation must be held to have been given up. In any event, such a statement was made at the bar and was accept the same. (Para 18)

Judgment

S.B. Sinha, J.—A two-Judge Bench of this Court by an order dated 6.9.2001 referred the matter for decision by a bench of three Judges in view of the purported conflict recorded in Kartar Singh vs. Harjinder Singh and Others [(1990) 3 SCC 517] and Rachakonda Narayana vs. Ponthala Parvathamma and Another [(2001) 8 SCC 173].

2. The basic fact of the matter is not in dispute.

Balwant Singh father of the Appellant herein was the owner of the suit land measuring 153 Kanals 19 Marlas. He allegedly entered into an agreement to sell the said land on a consideration of Rs. 500/- per Bigha. The total consideration of Rs. 16,000/- in terms of the said agreement for sale dated 22.7.1964 is said to have been paid. However, for some reason or the other no sale-deed could be executed and registered pursuant to or in furtherance thereof. It is stated that Arjan Singh had paid a further claim of Rs. 14,000/- in addition to the said sum of Rs. 16,000/-. The said Balwant Singh died on 11.2.1968 whereafter the Appellant herein entered into another agreement for sale on or about 17.10.1968 in relation to the suit land. The said agreement was entered into by him on his own behalf as also on behalf of his sister, for a consideration of Rs. 4,700 per acre. The amount of Rs. 32,000/- paid to Balwant Singh was treated to be the earnest money under the said agreement, in terms whereof, a sale-deed was to be executed and registered on or before 20.6.1969. As the Appellant herein allegedly failed and/or neglected to perform his part of contract, a suit for specific performance of the said agreement dated 17.10.1968 was filed. In the said suit, a plea was raised that the Appellant herein was not authorized to enter into the agreement for sale on behalf of his sister Tajinder Kaur. The Trial Court inter alia accepting the said plea dismissed the suit. It was further held that as two Khasras bearing Nos. 39/4 and 29/3/2 were not included while describing the land in the plaint, a decree for specific performance could not be granted.

3. A Letters Patent Appeal filed by the Plaintiffs-Respondents herein against the said judgment and decree came to be allowed by a Division Bench of the High Court by reason of the impugned judgment holding that as the property was owned by the Appellant and the said Tajinder Kaur in equal share, in view of Kartar Singh (supra), a decree for specific performance could be granted in favour of the Plaintiffs-Respondents herein in respect of the share of the Appellant subject to his right to apply for partition of the property for getting his share demarcated. As regard apportionment of the sale consideration, it was directed that the same would be reduced by 50% as the Appellant would only be entitled thereto. As regard the objection of the Appellant herein that no relief could be granted as the plaintiffs-Respondents failed to mention Khasra Nos. 39/4 and 39/3/2 in the plaint, the Division Bench held that such omission was inadvertent. It was pointed out that such an objection was raised only at the time of argument whereupon the plaintiffs filed an application for amendment of plaint. It was held :

“.....We are of the view that the trial court was not justified in dismissing the application on technical grounds. Decree was sought for the entire land i.e. 153 K 19M. Copies of the agreement as well as Jamabandi for the relevant year were also attached with the plaint. Agreement as well as Jamabandi clearly indicate that relief sought was with regard to the land measuring 153 K 19M which also includes Khasra Nos. 39/4 and 39/3/2. In this view of the matter, prayer of the plaintiffs for amendment of the plaintiff is allowed. Plaint would be deemed to have included Khasra Nos. 39/4 and 39/3/2 apart from other Khasra numbers mentioned in the plaint.”

4. The plaintiff-Respondents has filed an application for amendment of plaint wherein a prayer was made to substitute the following prayer in stead and place of the original prayers mad

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2005 Supreme(SC) 767

Important pointRelinquishment of claim as contemplated under Section 12(3)(ii) of Specific Relief Act as regards performance of remaining part of contract and all rights to compensation need not specifically be pleaded and can be made at any stage of litigation.

Cases Referred (4)

Important point
Relinquishment of claim as contemplated under Section 12(3)(ii) of Specific Relief Act as regards performance of remaining part of contract and all rights to compensation need not specifically be pleaded and can be made at any stage of litigation.