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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. VENUGOPAL, S. VAIDYANATHAN, JJ.
M/s. Aditya Real Estates, Rep. by Manish Agrawal - Appellant
Versus
P. Baskar, Partner, M/s. Vasavi Builders Medavakkam, Now known as Sri Aishwaryam Homes - Respondents
O.S.A. No. 67 of 2018
Decided On : 07-03-2018
Letters Patent – Clause 12 – Specific Relief Act, 1963 – Section 22 – Revocation of Leave to Sue – Appellant/Plaintiff has preferred the instant Original Side Appeal as against the order in Application in C.S. passed by the Learned Single Judge – Assailing the legality, validity and correctness of the order passed by the Learned Single Judge in A. Appellant/Plaintiff has focused the present Original Side Appeal on the ground that the Learned Single Judge had erred in allowing the Application for Revocation of Leave to Sue, which was granted under Clause 12 of the Letters Patent of the Madras High Court on the premise that the claim in Plaint comes under suit for land – Held, Mere running of the eye of the contents of paragraph 11 of the Plaint in C.S.No.402 of 2014 filed by the Appellant coupled with the relief portion in paragraph 13 of the Plaint, as referred to supra, unerringly point out that the suit is not simpliciter a suit for enforcement of specific performance/contract/agreement and if ultimately the relief of specific performance is granted, it will impinge upon the inherent relief of possession in the performance of contract of sale and in fact, while reading the cause of action paragraph 11 and para 13(a) of the averments of the Plaint clinchingly point out that it is only a suit for land, although the Appellant had endeavoured to seek the relief of passing of a decree by this Court, in directing the Defendants to specifically perform the twenty agreements for sale for undivided share in land and twenty Construction Agreements dated 18.10.2011 for construction of flat, relating to the suit schedule B properties by executing and registering Sale Deeds conveying twenty portions of undivided shares mentioned in Schedule B to the Plaint in favour of the Plaintiff and construct the twenty flats mentioned in schedule B to the Plaint etc., which, in the considered opinion of this Court, cannot be granted for the simple reason that the cause of action for the Appellant/Plaintiff in the present suit has arisen in regard to the immovable property situated on the outside city of Chennai and since the suit is one for control of land which will have a direct bearing on the title or the possession of the land in view of the alternative relief of seeking permanent injunction restraining the Defendants or any persons claiming through or under them from in any manner alienating or encumbering the suit schedule B properties and since the subject matter of the property is lying outside the jurisdiction of this Court, this Court has no jurisdiction to entertain the Suit, in the considered opinion of this Court. In fact, the Learned Single Judge had rightly held in A. in C.S. that the Appellant/Plaintiff is to approach the Competent Court of jurisdiction to present the Plaint in C.S. for redressal of his grievances, in the manner known to Law and in accordance with Law. – To put it succinctly, this Court, on going through the impugned order of the Learned Single Judge in A. in C.S., is of the considered view that the same is free from any Legal flaw. – Consequently, the Original Side Appeal fails. – Original Side Appeal Dismissed
M. Venugopal, J.
1. Heard the Learned Counsel for the Appellant and the Learned Counsel for the Respondent.
Preamble:
2. The Appellant/Plaintiff has preferred the instant Original Side Appeal as against the order dated 21.12.2017 in Application No.6870 of 2017 in C.S.No.402 of 2014 passed by the Learned Single Judge.
3. Earlier, the Learned Single Judge, while passing the impugned order in A.No.6870 of 2017 in C.S.No.402 of 2014 [filed by the Respondent/3rd Defendant], at paragraph 44, had observed the following:
“44. I have already extracted the prayer in the present suit as well as the allegations made in para 5 of the plaint. A combined reading of para 5 and prayer (a) in the suit would show that the suit is one for specific performance of an agreement which obliged the defendants to put the plaintiff in possession of the property. Therefore, the present suit cannot but be termed as a suit for land. Once it is concluded that the suit is one for land and when admittedly suit property is situated outside the original jurisdiction of this Court, this Court cannot entertain the suit.”
and resultantly, revoked the Leave granted in Application No. 2767 of 2017 on 23.04.2014 and directed the Registry to return the Plaint to the Appellant/Plaintiff, for presentation before the appropriate Court.
4. Assailing the legality, validity and correctness of the order dated 21.12.2017 passed by the Learned Single Judge in A.No.6870 of 2017 (filed by the Respondent/3rd Defendant), the Appellant/Plaintiff has focused the present Original Side Appeal on the ground that the Learned Single Judge had erred in allowing the Application for 'Revocation of Leave to Sue', which was granted under Clause 12 of the Letters Patent of the Madras High Court on the premise that the claim in Plaint comes under 'suit for land'.
5. Appellant's Contentions:
5.1. The Learned Counsel for the Appellant/Plaintiff contends that the Learned Single Judge had failed to appreciate that the main suit is for specific performance without a specific prayer for possession is not a suit for land and in fact, a suit for specific performance is only a suit to enforce a personal right against a particular individual which cannot be characterised as a 'suit for land' and viewed in that perspective, the invocation of Clause 12 seeking 'Leave to Sue' is perfectly maintainable in Law.
5.2. Advancing his arguments, the Learned Counsel for the Appellant/Plaintiff projects an argument that the Appellant/Plaintiff in the main suit had not sought for relief of possession specifically, but only for the relief was for specific performance which is squarely covered by Clause 12 of the Letters Patent, which empowers of this Court to entertain the suit notwithstanding the fact that the suit property is outside the jurisdiction of city limits of Madras.
5.3. The Learned Counsel for the Appellant takes a plea that in the instant case, in the main suit, the relief of permanent injunction was sought against the Defendants restraining them or any persons claiming through or under them from in any manner alienating or encumbering the suit schedule B properties which is maintainable in Law. In short, the Learned Single Judge, while passing the impugned order in A.No.6870 of 2017 had failed to keep in mind the difference between the injunction restraining interference with the possession and enjoyment and alienating or encumbering, and thereby has come to a wrong conclusion in holding that the suit filed by the Appellant/Plaintiff is a suit for land.
5.4. The stand of the Appellant/Plaintiff is that 1st Defendant in the suit is a Builder and also the owner of the property described in the schedule A as item 2 and also the Power Agent of the 18th Defendant who is the owner of the property described in Schedule A as item No.3. The Defendants 5 to 7 are represented by the Power Agent P.B. Krishna Prasad (brother of the 2nd Defendant).
5.5. It comes to be known that from the averments made in the Plaint by t
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