Specific Performance - Declaratory Suit - Courts cannot rewrite a contract in preference to the one entered into between the parties.

M.M.Kumar, J.

1. The order of the trial Court dated 21.12.205 dismissing an application filed by the defendant-petitioner under Order VII Rule II of the Code of Civil Procedure, 1908 (for brevity the Code) has been made subject matter of challenge in this petition filed under Article 227 of the Constitution. The trial Court has held that the suit of the plaintiff-respondents for declaration on the basis of agreement to sell executed between the plaintiff-respondent Jai Parkash and his brother, defendant-respondent No. 2 Narender Kumar on the one side being proposed vendees and defendant-petitioner on the other side being proposed vendors is maintainable.

2. Brief facts of the case are that the plaintiff-respondent Jai Parkash and Narender Kumar are both brothers who have entered into an agreement to sell with defendant-petitioner. Defendant-respondent No. 3 and 4 are their brother in law (Jija) and sister respectively. The plaintiff-respondent Jai Parkash filed a suit for declaration with consequential relief of mandatory injunction in his favour. He alleged that he along with his brother Narender Kumar had entered into an agreement to sale with defendant-petitioner m respect of a plot. On the request made by his brother Narender Kumar, defendant-respondent No. 2 the defendant-petitioner is alleged to have illegally transferred the plot in favour of their sister and brother-in-law without his consent. He has further prayed for mandatory injunction for cancellation of sale deed and issuance of directions to the defendant-petitioner to execute the sale deed in his favour (Jai Parkash) plaintiff-respondent and his brother, defendant-respondent No. 2. A further prayer to deliver possession of the suit land has also been made. The defendant-petitioner filed an application under Order VII Rule II of the Code seeking rejection of plaint by arguing that the suit was not maintainable on account of the provisions of Section 41(h) of the Specific Relief Act, 1963 and the only remedy available to the plaintiff-respondent was to file a suit for possession by way of specific performance. The application was contested and the same has been dismissed by the order impugned in this petition. The operative part of the order dated 21.12.2005 reads as under:

After careful perusal of case file it has been revealed that plaintiff and defendant No. 2 were running a partnership business under the name and style of M/s Babu Lal Jai Parkash, 3977 Naya Bazar, Delhi. It is further clarified that plaintiff and defendant No. 2 booked plot measuring 250 Sq. Yards bearing No.E-75 in Suncity Gurgaon with defendant No. 1 for a total consideration of Rs. 13,48,750/-. As per the case of the plaintiff the plot is stated to have been wrongly and illegally transferred on the request of defendant No. 2 alone in favour of defendant Nos. 3 and 4. The plea taken by counsel for defendant/applicant that the suit of the plaintiff is totally barred under the provisions of Section 41(h) of the Specific Relief Act as the efficacious remedy is only a suit for possession by way of specific performance of agreement cannot be accepted at this stage, because from the documents placed on Court file it is found that plaintiff has paid a sum of Rs. 10,97,495.63 to defendant No. 1 against the sale consideration of suit property and defendant No. 1 has transferred the half share of the plaintiff in favour of defendant Nos. 3 and 4 on the request of defendant No. 2, therefore, the plaintiff has rightly sought the remedy by way of filing of the present suit. The citations placed on Court file by learned Counsel for plaintiff i.e. Saleem Bhai and Ors. v. State of Maharashtra and Ors. 2003 S.A.R. (Civil) 86, Daljinder Singh v. Amarjit Singh Mandu and Ors. (2004-1) 136 P.L.R. 276 (P&H) are not applicable to the facts and circumstances of the present case. In the above noted cases a direction was given to the defendant to file written statement without deciding the application under