NIHAL SINGH Vs. SEWA RAM

JUDGEMENT

(1.) THIS matter comes up before me on the report of the stamp officer. The facts are simple. The plaintiffs brought a suit on the following allegations: Defendants Nos. 2 and 3 contracted to sell to them certain zamindari property for the sum of Rs. 2,900. Of this sum Rs. 100 was paid as earnest money. The defendants 2 and 3, however, failed to carry out their contract, but instead, they executed a sale- deed in favour of defendant No. 1. The defendant No. 1 had full knowledge of the contract between plaintiffs and the defendants 2 and 3. The plaintiffs, therefore, ask for specific performance of the contract including possession of the properly. The court fee paid in the courts below was that calculated under Section 7, Clause v, of the Court Fees Act, i.e., as in a suit for possession of land. A second appeal having been preferred by the plaintiffs in this Court, the stamp officer is of opinion that the plaintiffs should pay court fees not only under Section 7, Clause v, but also under Section 7, Clause x. THIS is contested by the plaintiffs appellants. As stated by a Bench of this Court in Muhi-ud-din Ahmad Khan v. Majlis Rai (1884) I.L.R. 6 All. 231, the suit is in substance one for specific performance of a contract and falls prima facie under Section 7, Clause x, of the Court Pees Act. I have no hesitation in accepting this as the true solution of the case, for one simple reason, viz., when a vendor contracts to sell, he contracts, as laid down in Section 55 of the Transfer of Property Act, to execute a proper conveyance of the property to the buyer, and tender it to him for execution at a proper time and place on payment of the amount due in respect of the price. He also contracts to give to the buyer or such person as he directs such possession of the property as its nature admits. The plaintiffs in the present case are clearly seeking to enforce the contract of sale and they also seek to force the vendor to do that which he is bound to do under that contract, i.e., to execute and register a sale-deed and to hand over possession of the property. The subsequent transferee is also made a party under the terms of Section 27 of the Specific Relief Act and the two reliefs can be enforced as against him by the plaintiffs. The suit, in my opinion, is in substance and in form a suit for specific performance of a contract, and the court fees must be paid in accordance with Clause x of Section 7 of the Court Fees Act.

(2.) IN the present case the court fees calculated under that section amount to Rs. 170. The court fee already paid is Rs. 26-4. The memorandum of appeal in this Court is therefore deficient by the difference between the two sums. There is also an equal deficiency due from the same plaintiffs for each of the courts below. They will therefore have to make good the deficiency for all three courts. I allow six weeks within which to make good the deficiency for all the courts.