Power to Grant Relief for Possession, Partition, Refund of Earnest Money, Etc. – Section 22 | Specific Relief Act

Section 22 of the Specific Relief Act, 1963 Provides that:

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1. Alternative relief:

A Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But, in view of the finding that the plaintiff paid Rs. 3.000/- as recited in the agreement, which is found to be genuine, the plaintiff is entitled to get refund of the said sum of Rs. 3.000/- although no such alternative claim was made in the plaint.

This view is supported by the Supreme Court on the ground that although no such alternative prayer was made in the plaint, the defendant could not be prejudiced by such a claim at all, and the matter ought not to be left to a separate suit. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit.

2. An appropriate case:

The expression “in an appropriate case” only indicates that it is not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for specific performance of a contract for the transfer of the immovable property.

That has to be done where the circumstances demanding the relief for specific performance of the contract of sale embraced within its ambit not only the execution of the sale-deed but also possession over the property conveyed under the sale- deed. It may not always be necessary for the plaintiff to specifically claim possession over the property, the relief of possession being inherent in the relief for specific performance of the contract of sale.

3. Claim of:

Section 22 enacts a rule of pleading. The Legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance, even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed.

The Legislature has now made a statutory provision in the suit for specific performance and empowering the Court provide in the decree itself that upon payment by the plaintiff of the consideration money with the given time the defendants should execute the deed and put the plaintiff in possession.

4. Decree for partition:

The decree for partition has attained finality. No decree for specific performance of contract, however, has been passed as against the respondent Nos. 4 and 5. They are, however, otherwise bound by the decree passed by the trial judge. Therefore, they are also proper parties, though not necessary parties.

5. Decree:

There can be no decree for specific performance of any agreement as none has been concluded on specified date.

6. Delivery of possession:

In a suit for specific performance of con­tract for sale of immovable property containing stipulation that on execu­tion of the sale-deed the possession of the immovable property will be handed over to the purchaser, it is implied that delivery of possession of the immovable property is a part of the decree of specific performance of contract The suit is for specific performance of agreement for sale, of the suit property wherein relief of delivery of the suit property has not been specifically claimed as such it cannot be treated as a “suit for land”.

7. Determination of:

The determination of the question of the right, title or interest of the objector in the immovable property under execution needs to be adjudicated under order XXL Rule 98 which is an order and is a decree under Order XXI, Rule 103 for the purpose of appeal subject to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a complete code in itself. Therefore, the Executing Court is required to determine the question, when the appellants had objected to the execution of the decree as against the appellants who were not parties to the decree for specific performance.

8. Discretion of Court:

As Article 13 of the Limitation Act prescribes a period of 3 years from the date fixed there under for specific performance of a contract, it follows that mere delay without more extending up to the said period cannot possibly be a reason for a Court to exercise its discre­tion against giving, a relief of specific performance. Nor can the scope of the discretion, after excluding the cases mentioned in Section 22 of the Specific Relief Act, be confined to waiver, abandonment or estoppel. If one of these three circumstances is established, no question of discretion arises, for either there will be no subsisting right or there will be a bar against its assertion. So, there must be come discretionary field unoccupied by three cases, otherwise the substantive section becomes otiose. It is really diffi­cult to define that field. Diverse situation may arise which may induce a Court not to exercise the discretion in favour of the plaintiff. It may better be left undefined except to state what the section says, namely, discretion of the Court is not < arbitrary, but sound and reasonable guided by judicial principles and capable of correction by a Court of appeal.

9. Effect of:

Where possession or partition of property was sought it was held that provision put fetters on the powers of Court to grant such relief without being specifically asked in the plaint.

10. Exclusive possession:

In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simpliciter, without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree against him completely he is bound not only to execute the sale-deed but is also to put the property in possession of the decree-holder. This is in conso­nance with the provisions of Section 55 (1) of the T.P. Act which provides that the seller is bounds to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature admits.

11. Grant of:

In view of Order II, Rule 2 of C.P.C. some doubt was entertained whether the relief for specific performance and partition and possession could be combined in one suit; one view being that the cause of action for claiming relief for partition and possession could accrue to the plaintiff only after he acquired title to the property on the execution of a sale-deed in his favour and since the relief for specific performance of the contract for sale was not based on the same cause of action as the relief for partition and possession, the two reliefs could not be combined in one suit.

Similarly, a case may be visualized where after the contract between the plaintiff and the defendant, the property passed in possession of a third person. A mere relief for specific performance of the contract of sale may not entitle the plaintiff to obtain possession as against the party in actual possession of the property. As against him, a decree for possession must be specifically claimed for such a person is not bound by the contract sought to be enforced.

In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simpliciter, without specifically providing for delivery of possession, may give complete relief to the decree-holder.

In order to satisfy the decree against him com­pletely he is bound not only to execute the sale-deed but also to put the property in possession of the decree-holder. This is in consonance with the provisions of Section 56 (1) of the T.P. Act which provides that the seller is bound to give, on being so required, the buyer or such person as he di­rects, such possession of the property as its nature admits.

There may be circumstances in which a relief for possession cannot be effectively granted to the decree-holder without specifically claiming relief for possession, viz., where the property agreed to be conveyed is jointly held by the defendant with other persons. In such a case, the plaintiff in order to obtain complete and effective relief must claim partition of the property and possession over the share of the defendant. It is in such cases that a relief for possession must be specifically pleaded.

The Court which passes a decree for specific performance retains con­trol over the decree even after the decree has been passed.

12. Initiation of:

The manner in which the decree has been passed by the Trial Court is open to question inasmuch as a relief in terms of Section 22 of the Specific Relief Act being incidental or ancillary to the main relief of specific performance of contract and, furthermore, being in addition thereto, ordinarily, a proceeding for grant of a final decree for partition should be initiated after the sale deed in terms of the decree for specific performance of contract is executed and registered and not vice-versa.

13. Judicial process:

Execution is a stage in the legal proceedings. It is a step in the judicial process. It marks a stage in litigation. It is a step in the ladder. In the journey of litigation there are various stages. One of them is execution.

14. Legality of:

Once it is held that Section 22 of the Specific Relief Act has an overriding effect over the provisions contained in Order VI, Rule 17, then it is amply clear that the plaintiff has a right to seek amendment claiming possession, in a suit for specific performance of contract, for the transfer of immovable property and the court has no option and/or choice but to allow the said amendment.

The proviso to sub-section (1) of Section 22 of the Specific Relief Act enables the plaintiff who has not claimed the relief of possession in the plaint, to seek an amendment and claim the same at any stage of the proceedings and the said right of the plaintiff cast an obligation on the Court to allow the said amendment. The relevant words used in the proviso “the Court shall”, clinches the issue.

The word “shall” used in the proviso is mandatory. The reason for rejection of the applica­tion for amendment relied upon by the trial Court viz. contradiction in the alleged date and month of dispossession cannot have any bearing in decid­ing the question, as to whether an application for amendment should be allowed or not. As the basis for rejection of application for amendment is itself ill- founded, even on that count, the order has to be held to be illegal.

15. Pleadings and proof:

Section 22 enacts a rule of pleading. The legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance, even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed. The Legislature has now made a statutory provision in the suit for specific per­formance and empowering the Court to provide the decree itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession.

16. Purpose of:

Section 22 enacts a rule of pleading. The Legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance, even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed.

The Legislature has now made a statutory provision enabling the plaintiff to ask for posses­sion in the suit for specific performance and empowering the Court to pro­vide in the decree itself that upon payment by the plaintiff of the consider­ation money within the given time, the defendant should execute the deed and put the plaintiff in possession.

17. Possession of land:

As per the agreement possession was to be handed over after completion of the sale. So far as the agreement is con­cerned, it is an admitted position that the land was owned by all the five defendants and defendant No. 1 was acting on behalf of the defendants Dos. 2 to 5 on the basis of power of attorney executed by defendants Nos. 2 to 5 in favour of defendants No. 1 dated 15-1-1979. Perusal of that power of attorney shows that by that power of attorney the defendant No. 1 was authorised by defendants Nos. 2 to 5 to enter into an agreement for sale of the property at such price as he may deem proper. By the power of attor­ney, he was also authorised to agree to include a clause in agreement of sale permitting the purchaser to draw water from the well on the other part of the property.

The defendant No. 1 was also authorised to execute a deed of conveyance transferring the property. In exercise of the power conferred on him, by the power of attorney, the defendant No. 1 entered into an agreement with the plaintiffs dated 23-1-1979. That agreement contained a clause that possession will be handed over to the purchaser on completion of the sale-deed.

After having entered into the agreement which contained a clause that possession of the land is to be handed over to the purchasers on completion of the sale, under the power of attorney only power that remained with the defendant No. 1 was to execute the sale-deed. He had no power to hand over possession of the land to the plaintiffs.

Therefore, even if it is assumed that the defendant No. 1 handed over possession of the land to the plaintiffs contrary to the terms in the agreement, possession of the land of the plaintiffs would be unauthorised and therefore, unless the plaintiffs claim a decree of possession from this Court or a decree ratifying handing over of possession by defendant No. 1 to them, the plaintiffs can­not get lawful possession of the land. If the plaintiffs cannot get lawful possession of the land, then making a decree of specific performance in their favour would be an empty formality.

18. Reliefs:

A person in a suit for specific performance of a contract for the transfer of immoveable property, may ask for appropriate relief, namely, he may ask for possession, or for partition or for separate posses­sion including the relief for specific performance. These reliefs he can claim, notwithstanding anything contained in the Code of Civil Procedure 1908, to the contrary Sub-section (2) of this section, however, specifically provides that these relief cannot be granted by the Court, unless they have been expressly claimed by the plaintiff in the suit. Sub-section (2) of the section recognised in clear terms the well-established rule of procedure that the Court should not entertain a claim of the plaintiff unless it has been specifi­cally pleaded by the plaintiff and proved by him to be legally entitled to.

If the relief which is implied in a relief which has already been granted by the Court, a specific mention of that relief in the decree may not be strictly necessary. However, if the additional relief sought is independent of the main relief already granted by the Court, then the explanation will have its effect and such a relief will be deemed to have been refused by the Court.

19. Right to possession:

Section 22 enacts a rule of pleading that in order to avoid multiplicity of proceedings, the plaintiff may claim a decree for possession and/or partition in a suit for specific performance. Even though strictly speaking, the right to possession accrues only when a suit for specific performance is decreed, indisputably such a decree for posses­sion and/or partition is prayed for in anticipation of the grant of prayer for specific performance of contract.

20. Sale of immovable property:

Where in a suit simpliciter for specific performance for sale of immovable property, no decree for possession Of land sold was claimed held that such suit could not be treated as suit for land “within the meaning of Letters Patent Clause 12, Bombay’.

21. Separate possession:

The section enacts that a person in a suit for specific performance of a contract for the transfer of immovable prop­erty, may ask for appropriate reliefs, namely, he may ask for possession, or for partition or for separate possession including the relief for specific per­formance. These reliefs he can claim, notwithstanding anything contained in the Code of Civil Procedure, 1908, to the contrary.

Sub-section (2) of this section, however, specifically provides that these reliefs cannot be granted by the Court unless they have been expressly claimed by the plaintiff in the suit. Sub-section (2) of the section recognised in clear terms the well-estab­lished rule of procedure that the Court should not entertain a claim of the plaintiff, unless it has been specifically pleaded by the plaintiff and proved by him to be legally entitled to.

The proviso to this sub-section (2), however, says that where the plaintiff has not specifically claimed these reliefs in his plaint, in the initial stages of the suit, the Court shall permit the plaintiff at any stage of the proceedings, to include one or more of the reliefs, men­tioned above by means of an amendment of the plaint on such terms as it may deem proper. The only purpose of this newly enacted provision is to avoid multiplicity of suits and that the plaintiff may get appropriate relief without being hampered by procedural complications.

22. Suit for specific performance:

Insofar as right of relief of parti­tion is concerned, section 22 of the Specific Relief Act, permits relief for partition and separate possession to be asked for by respondents 1 and 2. In the present case deceased appellant No. 1 and his wife had turned around and they wanted to defeat the agreement dated 20-12-1981 and in fact obtained a sale deed exclusively in their favour. It is apparent that the appellants and respondents could not have together in such matter, riot only this after having the sale deed, respondents 1 and 2 could not have continued together with him.

In the facts, it cannot be said that respon­dents 1 and 2 had no reason to seek relief of partition and separate posses­sion. It is no doubt true that relief sought for is in relation to entire one acre land which they agreed to purchase. However, they were joint purchasers as per agreement dated 20-12-1981 and one of them i.e., deceased appel­lant No. 1 was opposing relief in favour of respondents 1 and 2. In the face of this situation, the trial Court has correctly granted relief of partitioning 2/3rd share in favour of respondents 1 and 2.