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High Court Of Delhi
MAHENDER NATH GUPTA - Appellant
Versus
MOTI RAM RATTAN CHAND - Respondent
. 4 of 1973
Decided On : 03/26/1975
SPECIFIC PERFORMANCE - ACT-SECTION REFERRED: SECTION 22, 44 OF SPECIFIC RELIEF ACT, 1963; SECTION 6 OF GENERAL CLAUSES ACT - SUMMARY: The court held that Section 22 of the Specific Relief Act, 1963, which requires a plaintiff in a suit for specific performance to specifically claim possession of the property, does not apply to suits instituted before the commencement of the Act. The court reasoned that the repeal of the old Specific Relief Act, 1877, by Section 44 of the 1963 Act does not affect any right, liability, or legal proceeding acquired or instituted under the repealed Act, as per Section 6 of the General Clauses Act. The court further held that Section 22 is a rule of pleading that modifies existing rules and should not be applied retrospectively to pending actions.
Fact of the Case:
The appellant filed a suit for specific performance of a contract for the sale of immovable property in June 1963, before the commencement of the Specific Relief Act, 1963. The appellant did not specifically claim possession of the property in the plaint. The trial court decreed the suit in favor of the appellant, but did not grant possession of the property. The appellant appealed to the district court, which dismissed the appeal. The appellant then appealed to the High Court.
Finding of the Court:
The High Court held that Section 22 of the Specific Relief Act, 1963, applied to the appellant's suit and that the appellant should have amended the plaint to claim possession of the property. The court further held that the repeal of the old Specific Relief Act, 1877, by Section 44 of the 1963 Act, affected the appellant's right to possession, as the new Act did not contain a saving clause.
Issues: Whether Section 22 of the Specific Relief Act, 1963, applies to suits instituted before the commencement of the Act.
Ratio Decidendi: The court held that Section 22 of the Specific Relief Act, 1963, does not apply to suits instituted before the commencement of the Act because: * Section 22 is a new section that modifies existing rules of pleading and should not be applied retrospectively to pending actions. * The repeal of the old Specific Relief Act, 1877, by Section 44 of the 1963 Act does not affect any right, liability, or legal proceeding acquired or instituted under the repealed Act, as per Section 6 of the General Clauses Act. * Section 22 is a rule of pleading that modifies existing rules and should not be applied retrospectively to pending actions.
Final Decision: The High Court's order was set aside, and the appellant was granted possession of the property.
( 1 ) THESE are three execution appeals against the order of the Additional District Judge Delhi. The facts in all the cases are similar. I will first take Execution Second Appeal No. 4 of 1973.
( 2 ) MOHINDER Nath, appellant, instituted a suit for specific performance against M/s. Moti Ram Rattan Chand, respondents, for specific performance. This suit was instituted in June, 1963, in the court of the Subordinate Judge, Delhi. He decreed the suit on August 31, 1968. A decree for specific performance was passed in favour of the appellant.
( 3 ) THE appellant made an application for execution of the decree. He prayed for the delivery of possession of the plot of land which he had agreed to buy from the respondents. The respondents made an application under Section 47 of the Code of Civil Procedure to the executing court. Their sole objection was that the appellant was not entitled to get possession of the property as no such relief was granted to him by the Court and as none was asked for in the plaint in the suit. The executing court upheld the objection and dismissed the prayer of the appellant for delivery of possession.
( 4 ) THE appellant appealed to the District Court. His appeal was dismissed by the Additional District Judge on August 24. 1972. The appellant now appeals to this Court.
( 5 ) THE suit was filed in June, 1963. It was decided on August 31, 1968. as I have said. During the pendency of the suit the new Specific Relief Act (Act 47 of 1963) came into force. On March 1, 1964, it was brought into force.
( 6 ) SECTION 22 of the new Act provides:
"22. (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908. any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding. allow him to amend the plaint on such terms as may be just for including a claim for such relief. (3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under Section 21. "
( 7 ) THIS section makes it incumbent on a plaintiff to ask for possession of the property in addition to specific performance. Sub-section (2) provides that if in a suit for specific performance the plaintiff has omitted to ask for possession of the property in addition to specific performance no relief shall be granted by the court unless it has been specifically claimed. The effect of the section is that in a suit for specific performance prayer for possession must be distinctly and specifically made.
( 8 ) THE courts below took the view that Section 22 applied to the suit of the appellant. He should have asked for the relief of possession and should have amended his plaint so as to bring it in line with the new section, they said.
( 9 ) REFERENCE was also made to Section 44 of the new Act of 1963 which reads:
"the Specific Relief Act, 1877, is hearby repealed. "
( 10 ) ON the basis of this section the courts below held that the legislature intended that the proceedings in the pending suits should also be governed by the new Act and not by the old Act.
( 11 ) WHEN the appellant brought the suit in June. 1963, the Act in force was the Specific Relief Act of 1877 (Act 1 of 1877 ). He instituted the suit under that Act. He claimed only a decree for specific performance. He did not specifically ask for the relief of possession. The rea
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