ATMA RAMversusCHARANJIT SINGH

                          [2020] 3 S.C.R. 697                               697


                             ATMA RAM                                       A
                                   v.
                        CHARANJIT SINGH
           (Special Leave Petition (C) No. 27598 of 2016)
                        FEBRUARY 10, 2020                                   B
    [N. V. RAMANA AND V. RAMASUBRAMANIAN, JJ.]
       Code of Civil Procedure, 1908 – s.149; Or. VI, r.17 –
Respondent agreed to sell immovable property to petitioner under
an agreement entered in 1994 – Earnest money was paid – Petitioner
                                                                            C
issued legal notice in 1996 claiming that when the date fixed for
specific performance (07.10.96) arrived, the respondent disclosed
about the pendency of some civil litigation with a third party, as an
impediment for execution of sale deed – Petitioner filed suit in 1999
for mandatory injunction – Respondent sought its dismissal on the
ground that said suit was not maintainable for enforcing specific           D
performance of an agreement of sale – Trial Court directed the
petitioner to pay requisite court fee to overcome said technical
objection – Petitioner paid deficit court fee – Trial court decreed
the suit – Upset by First Appellate Court – Confirmed by High Court
– Held: If the suit was actually one for specific performance, the
                                                                            E
petitioner ought to have at least valued the suit on the basis of sale
consideration mentioned in the agreement – But he did not – If the
suit was only for mandatory injunction (which it actually was), only
recourse open to the petitioner was to seek an amendment u/Or. VI,
r.17 – If such an application had been filed, it would have either
been dismissed on limitation or even if allowed, the prayer for             F
specific performance, inserted by amendment, would not have been,
as a matter of course, taken as relating back to the date of the
plaint – Thus, a short-cut was found by the petitioner to retain the
plaint as such, but to seek permission to pay deficit court fee, as
though what was filed in the first instance was actually a suit for
                                                                            G
specific performance – Such dubious approach should not be
allowed especially in a suit for specific performance, as the relief
of specific performance is discretionary u/s.20, 1963 Act – Trial
Court, by a convoluted logic, chose to treat the suit as one for specific
performance and permitted the petitioner to pay deficit court fee –
High Court’s approach in non suiting the petitioner on ground of            H
                                 697
698            SUPREME COURT REPORTS                          [2020] 3 S.C.R.


A     limitation, despite the original defect having been cured and the
      same having attained finality, may be faulty – But the petitioner
      should not be allowed to take its advantage by taking shelter u/
      s.149 especially when he filed the suit (after more than three years
      of the date fixed under the agreement) only as one for mandatory
      injunction, valued the same as such and paid court fee accordingly,
B
      but chose to pay proper court fee after being confronted with an
      application for the dismissal of the suit – First Appellate Court rightly
      reversed the decree of specific performance granted by Trial Court
      – High Court right in upholding the same – Specific Relief Act,
      1963 – ss.16(c), 20.
C           Dismissing the Special Leave Petition, the Court
             HELD: 1.1 It is true that Section 149 CPC confers a
      discretion upon the Court to allow a person, at any stage, to pay
      the whole or part of the court fee actually payable on the document,
      but which has not been paid. Once the Court exercises such a
D     discretion and payment of court fee is made in accordance with
      the said decision, the document, under Section 149, shall have
      the same force and effect as if such fee had been paid in the first
      instance. But in this case, the question was not merely one of
      limitation. The relief sought in the plaint as it was originally
E     presented, was for a mandatory injunction to direct the respondent
      to receive the balance sale consideration and to get a document
      of transfer effected in favour of the petitioner. The petitioner/
      plaintiff was obviously conscious of the nature of the relief prayed
      for by him. This is why he valued the relief claimed in the suit at
      Rs. 250/- and paid a fixed court fee of Rs. 25/-. Instead of
F     addressing the issue as to whether the petitioner could indirectly
      seek specific performance of an agreement of sale, by couching
      the relief as one for mandatory injunction and paying a fixed court
      fee as payable in a suit for mandatory injunction, the Trial Court,
      by a convoluted logic, chose to treat the suit as one for specific
G     performance and permitted the petitioner to pay deficit court fee.
      As a matter of fact, if the suit was actually one for specific
      performance, the petitioner ought to have at least valued the
      suit on the basis of the sale consideration mentioned in the
      agreement. But he did not. If the suit was only for mandatory
      injunction (which it actually was), the only recourse open to the
H
               ATMA RAM v. CHARANJIT SINGH                                 699


petitioner was to seek an amendment under Order VI, Rule 17                A
CPC. If such an application had been filed, it would have either
been dismissed on the ground of limitation or even if allowed,
the prayer for specific performance, inserted by way of
amendment, would not have been, as a matter of course, taken
as relating back to the date of the plaint. Therefore, a short-cut
                                                                           B
was found by the petitioner/plaintiff to retain the plaint as such,
but to seek permission to pay deficit court fee, as though what
was filed in the first instance was actually a suit for specific
performance. Such a dubious approach should not be allowed
especially in a suit for specific performance, as the relief of specific
performance is discretionary under Section 20 of the Specific              C
Relief Act, 1963. [Paras 5-7][703 G-H; 704 A-H; 705 A-C]
      K.Raheja Constructions Ltd. v. Alliance Ministries
      (1995) Suppl. 3 SCC 17 : [1995] 3 SCR 960; Tarlok
      Singh v. Vijay Kumar (1996) 8 SCC 367 : [1996] 3
      SCR 879; Van Vibhag Karamchari Griha Nirman                          D
      Sahkari Sanstha Maryadit v. Ramesh Chander (2010)
      14 SCC 596 : [2010] 12 SCR 1045 – referred to.
       1.2 It may be true that the approach of the High Court in
non suiting the petitioner/plaintiff on the ground of limitation,
despite the original defect having been cured and the same having          E
attained finality, may be faulty. But the petitioner would not be
allowed to take advantage of the same by taking shelter under
Section 149 CPC, especially when he filed the suit (after more
than three years of the date fixed under the agreement of sale)
only as one for mandatory injunction, valued the same as such
and paid court fee accordingly, but chose to pay proper court fee          F
after being confronted with an application for the dismissal of the
suit. Clever ploys cannot always pay dividends. The fact that the
petitioner chose to issue a legal notice dated 12.11.96 and the
fact that the petitioner created an alibi in the form of an affidavit
executed before the Sub-Registrar on 7.10.1996 (marked as                  G
Exhibit P-2) to show that he was present before the Sub-Registrar
for the purpose of completion of the transaction, within the time
stipulated for its performance, was not sufficient to conclude that
the petitioner continued to be ready and willing even after three
years, on 13.10.1999 when the plaint was presented. No
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700            SUPREME COURT REPORTS                          [2020] 3 S.C.R.


A     explanation was forthcoming from the petitioner for the long delay
      of three years, in filing the suit (on 13.10.1999) after issuing a
      legal notice on 12.11.1996. The conduct of a plaintiff is very
      crucial in a suit for specific performance. A person who issues a
      legal notice on 12.11.1996 claiming readiness and willingness,
      but who institutes a suit only on 13.10.1999 and that too only
B
      with a prayer for a mandatory injunction carrying a fixed court fee
      relatable only to the said relief, will not be entitled to the
      discretionary relief of specific performance. The first Appellate
      Court rightly reversed the decree of specific performance granted
      by the Trial Court and the High Court was right in upholding the
C     judgment of the first Appellate Court. [Paras 8-10][705 A-H;
      706 A-C]
                              Case Law Reference
      [1995] 3 SCR 960                 referred to            Para 7
D     [1996] 3 SCR 879                 referred to            Para 7
      [2010] 12 SCR 1045               referred to            Para 7
             CIVIL APPELLATE JURISDICTION: Special Leave Petition
      (Civil) No. 27598 of 2016.
            From the Judgment and Order dated 20.05.2016 of the High Court
E
      of Punjab and Haryana at Chandigarh in RSA No. 1244 of 2013.
            Basant R., Sr. Adv., Samar Vijay Singh, Adv. for the Petitioner.
             Soumen Talukdar, R.D. Rathore, Varinder Kumar Sharma, Advs.
      for the Respondent.
F           The Judgment of the Court was delivered by
            V. RAMASUBRAMANIAN, J.
            1. The holder of an agreement for the purchase of an immovable
      property, whose suit for a mandatory injunction (construed by the Trial
G     Court as a suit for specific performance) was decreed by the Trial Court,
      but which decree was upset by the First Appellate Court and confirmed
      on second appeal by the High Court, has come up with the present
      Special Leave Petition.
             2. We have heard Shri R Basant, learned senior counsel appearing
      for the petitioner and Shri Soumen Talukdar, learned counsel appearing
H
      for the respondent.
                ATMA RAM v. CHARANJIT SINGH                                     701
                  [V. RAMASUBRAMANIAN, J.]

       3. The brief facts essential for the disposal of the special leave       A
petition are as follows;
      (i)   On 12.10.1994, an agreement was entered into by the
            petitioner with the respondent. By this agreement, the
            respondent agreed to sell to the petitioner, the land and factory
            premises at Plot No.90, Sector-21, Industrial Area, Bhiwani,        B
            with the land measuring about 1250 sq. yards. The total
            sale consideration fixed under the agreement was
            Rs. 4,38,000/-. An earnest money of Rs. 1,00,000/- was paid
            by the petitioner to the respondent at the time of execution of
            the agreement. The date for performance of the contract
            was fixed under the agreement as 07.10.1996.                        C

      (ii) The petitioner issued a legal notice dated 12.11.1996 claiming
           that when the date fixed for specific performance arrived,
           he approached the respondent for the completion of the
           transaction, and that at that time, the respondent disclosed
           about the pendency of some civil litigation with a third party,      D
           as an impediment for the execution of the sale deed.
           Therefore, the petitioner claimed in the legal notice that the
           respondent should furnish the details of all the litigation
           pending in respect of the said property and that if no litigation
           was pending, the respondent should come forward to execute           E
           the sale deed within 15 days.
      (iii) As there was no response to the legal notice, the petitioner
            filed a civil suit in CS No. 240 of 1999 in the Court of the
            Additional Civil Judge, Senior Division, Bhiwani. The prayer
            made in the suit was for a mandatory injunction to direct the       F
            respondent to execute all documents of transfer of the
            property in question after receiving the balance sale
            consideration. It is relevant to note here that since the suit
            was filed only for the relief of mandatory injunction, the
            petitioner valued the suit only at Rs. 250 and paid a fixed
            court fee of Rs. 25.                                                G
      (iv) The respondent filed a written statement denying everything
           including the execution of the agreement. He also questioned
           the maintainability of the suit in the form in which it was
           filed. The respondent further claimed that the suit was barred
           by limitation.                                                       H
702      SUPREME COURT REPORTS                            [2020] 3 S.C.R.


A     (v) On the basis of the pleadings, the Trial Court framed eight
          issues for consideration on 12.10.2002. These issues were
          as follows:
             “(1)   Whether the plaintiff agreed to purchase the suit
                    property from the defendant for a sum of
B                   Rs. 4,38,000/- and paid Rs.1,00,000/- as earnest
                    money on 12.10.1994 as alleged? OPP
             (2)    Whether the plaintiff is entitled to relief of mandatory
                    injunction as prayed for? OPP
             (3)    Whether the plaintiff has no locus-standi to file the
C                   suit? OPD
             (4)    Whether the plaintiff has no cause of action to file
                    the suit? OPD
             (5)    Whether the suit is not maintainable in the present
D                   form? OPD
             (6)    Whether the suit is bad for mis-joinder and non-joinder
                    of necessary parties? OPD
             (7)    Whether the plaintiff is estopped by his own act and
                    conduct from filing the suit? OPD
E            (8)    Relief.”
      (vi) After filing the written statement, the respondent also took
           out an application for the dismissal of the suit on the ground
           that a suit for mandatory injunction was not maintainable for
           enforcing specific performance of an agreement of sale. The
F          said application was disposed of by the Trial Court by a very
           curious order, dated 09.08.2003, holding that the suit was in
           fact one for specific performance of an agreement of sale
           and that the technical objection regarding the maintainability
           could be overcome by directing the petitioner/plaintiff to pay
G          the requisite court fee. Accordingly, Trial Court directed the
           petitioner/plaintiff to make good the deficit court fee on or
           before 08.09.2003.
      (vii) Unfortunately, the respondent did not challenge the aforesaid
            order of the Trial Court dated 09.08.2003. As a consequence,
H           the petitioner/plaintiff paid the deficit court fee and the trial
            court chose to treat the suit as one for specific performance.
                 ATMA RAM v. CHARANJIT SINGH                                      703
                   [V. RAMASUBRAMANIAN, J.]

       (viii) After so overcoming a major hurdle, the Trial Court decreed         A
              the suit by a judgment dated 03.02.2006, directing the petitioner
              to pay the balance of sale consideration within one month
              and directing the respondent to get the suit property transferred
              in the name of the petitioner, directly from HUDA.
       (ix) Aggrieved by the judgment and decree, the respondent filed            B
            a regular first appeal in Civil Appeal No. 181 of 2006, on the
            file of Additional District Court, Bhiwani. By a judgment dated
            02.01.2013, the District Court allowed the appeal and set
            aside the judgment of the Trial Court, thereby dismissing the
            suit.
                                                                                  C
       (x) Aggrieved by the judgment of the First Appellate Court, the
           petitioner filed a second appeal in RSA No.1244 of 2013 on
           the file of the High Court of Punjab & Haryana at Chandigarh.
           The High Court dismissed the second appeal by a judgment
           dated 20.05.2016. It is against the said judgment and decree
           that the plaintiff has come up with the above special leave            D
           petition.
       4. The main fulcrum of the argument of Shri R. Basant, learned
senior counsel appearing for the petitioner is that by the order dated
9.08.2003, the Trial Court chose to treat the suit for mandatory injunction
as one for specific performance and directed the petitioner/plaintiff to          E
pay the deficit court fee and that the petitioner also complied with the
said order. Therefore, it is contended that by virtue of Section 149 of the
Code of Civil Procedure, such payment would have the same force and
effect as if such fee had been paid in the first instance itself. But, the
High Court held the suit as time barred. This, according to the learned           F
senior counsel for the petitioner, is contrary to law in the teeth of section
149 of the Code. It is his further contention that the effect of Section
16(c) of the Specific Relief Act, 1963 was not considered in the proper
prospective by the High Court with particular reference to the facts of
the case and that, therefore, the judgment of the High Court stood vitiated.
                                                                                  G
      5. We have carefully considered the above contentions. It is true
that Section 149 CPC confers a discretion upon the Court to allow a
person, at any stage, to pay the whole or part of the court fee actually
payable on the document, but which has not been paid. Once the Court
exercises such a discretion and payment of court fee is made in
accordance with the said decision, the document, under Section 149,               H
704             SUPREME COURT REPORTS                           [2020] 3 S.C.R.


A     shall have the same force and effect as if such fee had been paid in the
      first instance.
              6. But in this case, the question was not merely one of limitation.
      As we have stated earlier, the suit agreement of sale was dated
      12.10.1994. According to the petitioner, the last date fixed for the
B     performance of the obligations under the contract, was 7.10.1996. A
      legal notice was issued by the petitioner on 12.11.1996. But the plaint
      itself was presented only on 13.10.1999, which was beyond three years
      of the date 7.10.1996, fixed under the agreement of sale for the
      performance of the contract. (Though the petitioner has claimed before
      us that the plaint was presented on 3.10.1999, the copy of the judgment
C     as well as the decree of the Trial Court indicate the date of presentation
      of the plaint as 13.10.1999). The relief sought in the plaint as it was
      originally presented, was for a mandatory injunction to direct the
      respondent to receive the balance sale consideration and to get a document
      of transfer effected in favour of the petitioner. The petitioner/plaintiff
D     was obviously conscious of the nature of the relief prayed for by him.
      This is why he valued the relief claimed in the suit at Rs.250/- and paid
      a fixed court fee of Rs.25/-. The respondent took an objection in his
      written statement, to the maintainability of the suit, in the form in which
      it was filed. Therefore, the Trial Court also framed an issue as to whether
      the suit was not maintainable in the present form, as issue No.5. It was
E     only after issues were framed on 12.10.2002 that the Trial Court took up
      the application filed by the respondent for the dismissal of the suit. It is
      in that application that the Trial Court passed the order dated 09.08.2003
      permitting the petitioner/plaintiff to pay the deficit court fee by treating
      the prayer made as one for specific performance. Instead of addressing
F     the issue as to whether the petitioner could indirectly seek specific
      performance of an agreement of sale, by couching the relief as one for
      mandatory injunction and paying a fixed court fee as payable in a suit for
      mandatory injunction, the Trial Court, by a convoluted logic, chose to
      treat the suit as one for specific performance and permitted the petitioner
      to pay deficit court fee.
G
              7. As a matter of fact, if the suit was actually one for specific
      performance, the petitioner ought to have at least valued the suit on the
      basis of the sale consideration mentioned in the agreement. But he did
      not. If the suit was only for mandatory injunction (which it actually was),
      the only recourse open to the petitioner was to seek an amendment
H
                  ATMA RAM v. CHARANJIT SINGH                                  705
                    [V. RAMASUBRAMANIAN, J.]

under Order VI, Rule 17 CPC. If such an application had been filed, it         A
would have either been dismissed on the ground of limitation (K.Raheja
Constructions Ltd., vs. Alliance Ministries1) or even if allowed, the
prayer for specific performance, inserted by way of amendment, would
not have been, as a matter of course, taken as relating back to the date
of the plaint (Tarlok Singh vs. Vijay Kumar2, Van Vibhag Karamchari
                                                                               B
Griha Nirman Sahkari Sanstha Maryadit vs. Ramesh Chander3).
Therefore, a short-cut was found by the petitioner/plaintiff to retain the
plaint as such, but to seek permission to pay deficit court fee, as though
what was filed in the first instance was actually a suit for specific
performance. Such a dubious approach should not be allowed especially
in a suit for specific performance, as the relief of specific performance      C
is discretionary under Section 20 of the Specific Relief Act, 1963.
       8. It may be true that the approach of the High Court in non
suiting the petitioner/plaintiff on the ground of limitation, despite the
original defect having been cured and the same having attained finality,
may be faulty. But we would not allow the petitioner to take advantage         D
of the same by taking shelter under Section 149 CPC, especially when
he filed the suit (after more than three years of the date fixed under the
agreement of sale) only as one for mandatory injunction, valued the
same as such and paid court fee accordingly, but chose to pay proper
court fee after being confronted with an application for the dismissal of
the suit. Clever ploys cannot always pay dividends.                            E

       9. Coming to the second aspect revolving around Section 16(c), a
look at the judgment of the Trial Court would show that no issue was
framed on the question of readiness and willingness on the part of the
petitioner/plaintiff in terms of Section 16(c) of the Specific Relief Act,
1963. The fact that the petitioner chose to issue a legal notice dated         F
12.11.1996 and the fact that the petitioner created an alibi in the form of
an affidavit executed before the Sub-Registrar on 7.10.1996 (marked
as Exhibit P-2) to show that he was present before the Sub-Registrar
for the purpose of completion of the transaction, within the time stipulated
for its performance, was not sufficient to conclude that the petitioner        G
continued to be ready and willing even after three years, on 13.10.1999
when the plaint was presented. No explanation was forthcoming from
1
  1995 Supp l. (3) SCC 17
2
  1996 (8) SCC 367
3
  2010 (14) SCC 596
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706             SUPREME COURT REPORTS                           [2020] 3 S.C.R.


A     the petitioner for the long delay of three years, in filing the suit (on
      13.10.1999) after issuing a legal notice on 12.11.1996. The conduct of a
      plaintiff is very crucial in a suit for specific performance. A person who
      issues a legal notice on 12.11.1996 claiming readiness and willingness,
      but who institutes a suit only on 13.10.1999 and that too only with a
      prayer for a mandatory injunction carrying a fixed court fee relatable
B
      only to the said relief, will not be entitled to the discretionary relief of
      specific performance.
             10. Therefore, we are of the considered view that the first Appellate
      Court rightly reversed the decree of specific performance granted by
      the Trial Court and the High Court was right in upholding the judgment
C     of the first Appellate Court.
            11. In view of the above, the special leave petition is dismissed.
      There will be no order as to costs.


D     Divya Pandey                                                   SLP dismissed.




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