Specific performance of a contract is not enforceable if the vendor lacks clear title; title issues necessitate a full trial rather than pre-emptive dismissal.

ORDER :

V. SRISHANANDA, J.

1. Heard Sri. Akram, learned counsel for the petitioner and Sri. Sappannar Basavaraj Shivappa, learned counsel for the respondents.

2. Defendant in O.S. No.756/2021 is the revision petitioner challenging the Order dated 05.09.2022 rejecting the application filed under Order VII Rule 11(a), (b) and (d) of Code of Civil Procedure in this revision petition.

3. Facts in the nutshell which are utmost necessary for disposal of the present petition are as under:

3.1 A suit for specific enforcement of alleged agreement of sale dated 01.07.2019 came to be filed by the respondent/plaintiff against the revision petitioner/ defendant.

3.2 The said suit is being contested by the defendant by filing written statement inter alia filed an application under Order VII Rule 11(a), (b) and (d) of Code of Civil Procedure.

3.3 Application was opposed by the learned Trial Judge by impugned Order dated 05.09.2022 inter alia holding in Paragraphs No.10 to 14 as under:

10. In the instant case, the plaintiffs have admittedly mentioned about the said writ appeal pending before Hon'ble High Court of Karnataka. Admittedly the writ appeal is pending before Hon'ble High Court of Karnataka at W.A.No.3915/2019. The right, title and interest of defendant is hanging on the outcome of said writ appeal. The question before court is as to whether the said appeal would come in the way of plaintiffs in agitating right over the said Agreement of Sale dated 01-07-2019. Admittedly the time for completion of contract was fixed by the parties in the said Agreement by agreeing to complete the contract within 06 months from the date of making good and marketable title by the prospective vendor. Therefore the said time starts from the date of making good The and marketable title by the prospective vendor. defendant cannot straight away invoke Section 17 of Specific Relief Act and deny the right of plaintiffs. The title of defendant has not been completely decided in the said appeal and he has not been decided as title less person. Therefore he cannot press into service the said Section. It is premature to invoke said and held that the plaintiffs have entered Agreement with the title less person. As regards second component of said is concerned it is premature to accept that the title of defendant is doubtful. The said Section makes it very clear that the court can refused to enforce the said Agreement in its entirety against defendant when the case reached to the stage of directing the prospective vendor to execute Sale Deed. In the instant case the defendant has also contended that the said Agreement of Sale has been got executed by playing fraud and misrepresentation. Therefore the issue over execution of Agreement of Sale has to be tried and when it reached to the stage of directing the prospective vendor to execute Sale Deed within time fixed by the court, it can take note of (b) of Specific Relief Act. Therefore the factum of enforcibility of Agreement is concerned, the defendant can take aid of (b) of said Act at the time of final disposal of suit and if it reached to the stage of fixing date for completion of contract. He can take the shelter of said Section and make submission over the entitlement of relief of plaintiffs.

11. Interestingly the Record of Right is standing in the name of 3rd party by name Mr. V. Rajanna S/o Venkatappa. The nature of entry is shown as sale on 04- 07-2005. Therefore issue of title of defendant is not only couched with said writ proceedings it also indicate the interest of other 3rd party which requires to be examined. Therefore the defendant