M/S. SUNCITY PROJECTS LIMITED Vs. JAI PARKASH

JUDGEMENT

(1.) THE order of the trial Court dated 21.12.2005 dismissing an application filed by the defendant-petitioner under Order VII Rule 11 of the Code of Civil Procedure, 1908 (for brevity 'the Code') has been made subject matter of challenge in this petition filed under Article 227 of the Constitution. The trial Court has held that the suit of the plaintiff- respondents for declaration on the basis of agreement to sell executed between the plaintiff-respondent Jai Parkash and his brother, defendant-respondent No. 2 Narender Kumar on one side being proposed vendees and defendant-petitioner on the other side being proposed vendors is maintainable.

(2.) BRIEF facts of the case are that the plaintiff-respondent Jai Parkash and Narender Kumar are both brothers who have entered into an agreement to sell with defendant-petitioner. Defendant respondent No. 3 and 4 are their brother-in-law (Jija) and sister respectively. The plaintiff-respondent Jai Parkash filed a suit for declaration with consequential relief of mandatory injunction in his favour. He alleged that he alongwith his brother Narender Kumar had entered into an agreement to sell with defendant-petitioner in respect of a plot. On the request made by his brother Narender Kumar, defendant-respondent No. 2 the defendant-petitioner is alleged to have illegally transferred the plot in favour of their sister and bother-in-law without his consent. He has further prayed for mandatory injunction for cancellation of sale-deed and issuance of directions to the defendant- petitioner to execute the sale-deed in his favour (Jai Parkash) plaintiff- respondent and his brother, defendant-respondent No. 2. A further prayer to deliver possession of the suit land has also been made. The defendant- petitioner filed an application under Order VII Rule 11 of the Code seeking rejection of plaint by arguing that the suit was not maintainable on account of the provisions of Section 41(h) of the Specific Relief Act, 1963 and the only remedy available to the plaintiff-respondent was to file a suit for possession by way of specific performance. The application was contested and the same has been dismissed by the order impugned in this petition. The operative part of the order dated 21.12.2005 reads as under :-

(3.) IT is true that in cases where the agreement to sell in respect of immovable property is breached then ordinarily a suit for specific performance of the agreement to sell is required to be filed and that would be efficacious and proper remedy. However, in the present case when the suit property has already been transferred on the directions issued by a proposed vendee co- party to the agreement to sell in favour of his close relations then a simple suit for specific performance of contract would not be proper remedy. Firstly, the co-party to the agreement to sell i.e. defendant-respondent No. 2 Narender Kumar has to be impleaded as defendant because he has ignored the plaintiff- respondent Jai Parkash and without his consent has directed the defendant- petitioner to transfer the suit land to a third party. Defendant-petitioner could not have acted on the directions of Narender Kumar alone. In a suit for specific performance no relief could have been claimed against a co-party to the agreement to sell. Had the plaintiff-respondent filed a suit for specific performance for agreement to sell then both the brothers who were parties to the agreement to sell were required to be the plaintiffs. The suit could not be decreed in favour of the plaintiff-respondent alone as half share in favour of the plaintiff-appellant would result into complete novation of the agreement to sell. It is well settled that the Courts cannot re-write a contract in preference to the one entered into between the parties. The facts of the present case are so peculiar that pure and simple remedy of filing a suit for specific performance may not be a proper and efficacious remedy. Therefore, I do not find any legal infirmity in the findings recorded by the trial Court. The judgment of the Supreme Court in the case of N. V. Srinivasa Murthy does not have any relevance to the facts of the present case and therefore, I do not propose to deal with the same in details. In view of the above, this petition fails and the same is dismissed. Petition dismissed.