A bench of Justices J B Pardiwala and R Mahadevan also emphasised that a suit for specific performance and delivery of possession is covered under clause (d) to Section 16 of the Civil Procedure Code and thus the parties, even by agreement, cannot confer territorial jurisdiction on a court within whose territory the subject matter is not situated.

 

Dealing with a special leave petition filed by one Rohit Kochhar against the Delhi High Court's division bench decision, the top court said that the proviso to Section 16 would be applicable to a case where the relief sought by the plaintiff can be obtained through the personal obedience of the defendant, that is, the defendant has not to go out of the jurisdiction of the court at all for the purpose of the grant of relief.

 

It also said that the plaintiff can seek the relief of possession, partition, etc simultaneously along with the prayer for a specific performance.

 

The High Court's division bench ordered the plaint to be returned to the petitioner before it for presenting it before the appropriate court having territorial jurisdiction to try the suit for specific performance.

 

The matter stemmed with the institution of a civil suit by the petitioner on the original side for permanent injunction and specific performance of the contract of 2004 entered into with the respondents - the original defendants, in connection with a commercial property admeasuring 10,747 sq ft situated on the second floor of the Fortune Global Hotel & Commercial Complex in Gurgaon.

 

The defendants in their written statements, inter alia, raised a preliminary objection as regards the territorial jurisdiction of the Delhi High Court to entertain the suit instituted by the plaintiff. The defendants submitted that there was no concluded and binding contract and the plaintiff failed to show his readiness and willingness to pay the balance amount at any point in time and thus could not seek specific performance of the contract.

 

The single judge bench of the high court by its 2005 order overruled the objection raised by the defendants as regards the territorial jurisdiction and took the view that it had the jurisdiction to entertain the suit. The court also felt that as the plaintiff was seeking the relief of specific performance simpliciter and had not prayed for a decree to put him in possession of the suit property, such a relief could be granted and enforced by the personal obedience of the vendor and thus the court in whose territorial jurisdiction the vendor resides or carries on business or works for gain would have the jurisdiction to entertain the suit.

 

The defendants, being aggrieved by the order passed by the single judge bench, preferred three appeals before a division bench which came to be allowed with an order that the plaint be returned to the plaintiff in accordance with law so as to be presented before the court of competent jurisdiction.

 

Having heard the counsel for the parties and having gone through the materials on record, the bench said, "We are of the view that no error not to speak of any error of law could be said to have been committed by the High Court in passing the impugned orders".

 

The bench agreed with the view expressed by the High Court that the proviso to Section 16 would be applicable to a case where the relief sought by plaintiff can be obtained through the personal obedience of the defendant, that is, the defendant has not to go out of the jurisdiction of the court at all for the purpose of the grant of relief.

 

"However, since the present case would require the defendants to go to Gurugram for the purpose of execution of the sale deed, hence the proviso to Section 16 of the CPC will not be applicable," the bench said.

 

Referring to Section 22 of the Specific Relief Act, the bench said the provision provides that any person suing for specific performance of a contract for transfer of immovable property may, in an appropriate case, sue for possession, or partition and separate possession of the property, in addition to such performance.

 

It also provided that in sub-section (2) of the said provision that no relief under the said provision shall be granted by the court unless it has been specifically claimed, provides that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

 

In the present case, the bench pointed out that the alleged contract for the sale executed between the parties through exchange of communications of January 16, 2004, and January 20, 200,4 respectively contained the stipulation that 10% of the total sale consideration had to be paid immediately by the plaintiff upon booking, 85% of the sale consideration had to be paid by February 28, 2004 and the balance 5% of the sale consideration had to be paid at the time of notice for possession of the premises.

 

Further, it noted, that there was a stipulation that the possession of the suit property had to be handed over by the defendants to the plaintiff upon payment of the balance 5% of the total sale consideration.

 

"Section 55(1) (f) of the Transfer of Property Act also stipulates that the seller of an immovable property is required to handover the possession of the property to the buyer pursuant to the execution of the sale deed," it said.

 

Thus, the bench said, "It is clear from the terms of the alleged contract between the parties that the transfer of possession of the suit property is implicit in the said contract and absence of a specific prayer seeking transfer of possession would not have any bearing on the character of the suit, which is one covered by Section 16(d) of the CPC".

 

"If we were to hold otherwise, then it would give rise to a situation where a plaintiff would be allowed to file a suit for specific performance simplicter and having obtained a decree therein, the plaintiff would pray for the transfer of the execution proceedings to the court within whose territorial jurisdiction the suit property lies and thereafter seek amendment of the plaint to include a prayer for transfer of possession. An interpretation which gives rise to the possibility of such misuse of law cannot be allowed," the bench said.

 

Court dismissed the special leave petition, saying it was for the plaintiff to take appropriate steps to present the plaint before the court of competent jurisdiction and get his suit adjudicated on merits in accordance with law.