ATMA RAM versus CHARANJIT SINGH

Citation: [2020] 3 S.C.R. 697 · Decided: 10-02-2020 · Supreme Court of India · Bench: N.V. RAMANA · Disposal: Dismissed

Cited by 2 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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697
ATMA RAM
v.
CHARANJIT SINGH
(Special Leave Petition (C) No. 27598 of 2016)
FEBRUARY 10, 2020
[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
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
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
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
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
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
[2020] 3 S.C.R. 697
697
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SUPREME COURT REPORTS
[2020] 3 S.C.R.
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,
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.
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
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
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
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
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 ough

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