B. SANTOSHAMMA & ANR. versus D. SARALA & ANR. on 18 September 2020

[2020] 11 S.C.R. 1

B. SANTOSHAMMA & ANR.

v.

D. SARALA & ANR.

(Civil Appeal No. 3574 of 2009 Etc.)

SEPTEMBER 18, 2020

[UDAY UMESH LALIT AND INDIRA BANERJEE, JJ.]

Specific Performance:

Agreement for sale of suit land (300 sq. yards) – Betweenappellant-vendor and respondent-vendee – For a total considerationof Rs. 75,000/- – Rs. 45000/- out of the total consideration paid tothe vendor – Total consideration was required to be paid within 45days from the date of agreement – Subsequent to the agreementvendor executed a registered deed of conveyance in favour of ‘P’in respect of 100 sq. yards out of the suit land – Suit for specificperformance by vendee – Plea of vendor that the agreement wassubject to the condition that the vendor would negotiate with ‘P’ toget his earlier agreement with the vendor cancelled – ‘P’ was initiallynot impleaded in the suit for specific performance – However, wasimpleaded after expiry of limitation period – Another suit by vendeeagainst ‘P’ seeking declaration of agreement between vendor and‘P’ as null and void, without impleading the vendor – Suit by ‘P’seeking perpetual injunction against the vendee – Trial courtdecreed the suit for specific performance in part, holding that thevendee was entitled to only 200 sq. yards of the suit land and not tothe 100 sq. yards which was covered by the sale deed in favour of‘P’ – Vendee’s suit against ‘P’ was dismissed for non-joinder of thevendor – Ascertaining the sale consideration for 200 sq. yards tobe Rs. 50,000/- and in view that Rs. 45000/- had already been paidto the vendor, the Court directed the vendee to pay the balance Rs.5000/- within a stipulated time and in default, the suit was to bedismissed – Appeal by vendor as well as the vendee – High Courtconfirmed the judgment of trial court – Appeal to Supreme Court –Held: Vendee was always ready and willing to perform and hadperformed the obligations under the agreement – The vendor failedto discharge the onus to prove that the agreement was subject to thecondition that the vendee would negotiate with ‘P’ – Vendor having

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Aaccepted major part of consideration, cannot contend that theagreement could not have been enforced in respect of 200 sq. yardsin favour of the vendee – The suit for specific performance against‘P’ having been barred by limitation and the suit for declarationhaving been dismissed for non-joinder of vendor, rights of ‘P’ over100 sq. yard cannot be nullified – The orders of courts below doBnot call for any interference.

Specific Relief Act, 1963:

s.10 (as amended w.e.f. 01-10-2018) and ss. 11(2), 14 and16 – Specific performance in respect of contracts – Nature of –CHeld: After amendment of s. 10, relief of specific performance of acontract is no longer discretionary – The Court is obliged to enforcethe same, subject to the provisions of ss. 11(2), 14 and 16.

s.12 – Specific performance of part of contract – Permissibility– Held: Ordinarily the Court enforces a contract in its entirety –DBut, the Court may, u/s. 12 direct the defaulting party to perform somuch part of the contract as can be performed.

Party:

Necessary party – A transferee, to whom the subject matterof a sale agreement or part thereof is transferred, is a necessaryEparty to a suit for specific performance – In a suit for declaring adocument as null and void, the executant of the document in questionis a necessary party.

Pleading:

Plea of bar under Order II rule 2 CPC – Held: Is a technicalFplea, which has to be pleaded and satisfactorily established – Onfailure to raise such plea, court not to decide the plea suo moto –Code of Civil Procedure, 1908 – Order II rule 2.

Suit:

Clubbing of suits – Purpose and effect of – Held: Clubbingof suits is for the sake of convenience i.e. to save time, costs,repetition of procedures and to avoid conflicting judgments – Suchclubbing does not convert the suits into one action – The suits retaintheir separate identity.

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Dismissing the appeals, the Court

Conclusion

HELD: 1.1 The finding of the trial court, affirmed by theHigh Court that the vendee was ready and willing to perform herobligations under the agreement dated 21.3.1984, which is basedon evidence and supported by cogent reasons, is unexceptionable.[Para 57][20-D-E]

1.2 The vendee paid Rs.40,000/- out of the totalconsideration of Rs.75,000/- on the date of execution of theagreement dated 21.3.1984 itself. It is not disputed that theVendee paid a further Rs.5,000/- to the Vendor’s husband againsta receipt. It is the vendor’s own case that in terms of the agreementdated 21.3.1984, the full consideration was to be paid within 45days. The vendee’s claim that she tendered Rs.30,000/- on30.4.1984 was not disputed by the vendor in her legal notice/letter dated 20.6.1984. In any case the vendee obtained DemandDraft dated 4.5.1984 for Rs.30,000/- in favour of the vendortowards balance consideration, within 47 days from the executionof the agreement dated 21.3.1984. Time is not of essence toagreements for sale of immovable property, unless the agreementspecifically and expressly incorporates the consequence ofcancellation of the agreement, upon failure to comply with a termwithin the stipulated date. The concurrent findings of the HighCourt and the trial court that the vendee was ready and willing toperform and had performed her obligations under the agreementdated 21.3.1984, are based on evidence and sound reasons andhence do not call for interference of this Court. [Paras 60 and61][21-E-H; 22-A-C]

2.1 The plea of the vendor, that the agreement dated21.3.1984 was subject to the condition that the vendee would getthe earlier agreement between the vendor and ‘P’ cancelled,cannot be accepted for the reasons that (i) the agreement dated21.3.1984, which is in writing does not incorporate any suchcondition; (ii) that it is incredible that the vendor, who knew ‘P’to whom she had agreed to sell 100 square yards of land, shouldproceed on the basis of an alleged assurance of the vendee, that‘P’ would relinquish his rights under the earlier agreementbetween the vendor and ‘P’, without ascertaining from ‘P’ whetherhe was actually ready to relinquish his rights under the said B

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Aearlier agreement with her; (iii) that ‘P’ had denied knowledge ofthe agreement between the vendor and the vendee; and that (iv)within a month and a few days from the date of execution of theagreement between the vendor and the vendee, after the vendeetendered full consideration, the vendor executed a registereddeed of conveyance in favour of ‘P’ without any prior intimationBto the vendee, and without giving the vendee any opportunity topersuade ‘P’ to abrogate his earlier agreement with the vendor.[Para 58][20-E-G; 21-A-B]

2.2 The onus of proof lies on the party who makes anallegation. It was for the vendor to establish that the agreementCdated 21.3.1984 was subject to the condition as alleged by thevendor, that the vendee and/or her husband would negotiate with‘P’ to get his earlier agreement with the vendor cancelled. Thevendor failed to discharge her onus of proving that there wassuch a condition in the agreement dated 21.3.1984. The trial courtDand the High Court rightly did not believe the vendor.[Para 59][21-C-D]

3. It is true that the trial court had directed the vendee topay the balance of Rs.5,000/- on or before 15.4.1994, failing whichthe suit for specific performance would stand dismissed. However,Eany time granted by the Court at its discretion, can always beextended by the Court. In any case, the vendor had filed an appealagainst the decree in the suit for specific performance. Thevendee, who had been litigating for about 10 years by April, 1994and had already paid Rs.45,000/- over 10 years ago, but not gotthe suit land, could not be expected to put in more money, untilFthe decree assumed finality. Since there was an appeal of thevendor pending, the failure of the vendee to put in Rs.5,000/-within the time stipulated by Court, wold not, in itself, disentitlethe vendee to the relief of specific performance. It was for theCourt to decide whether or not to extend the time for payment ofGRs.5,000/-. The appellate court rightly expressed its discretionin favour of the vendee. [Paras 62, 63 and 64][22-C-F]

4.1 The relief of specific performance of an agreement, wasat all material times, equitable, discretionary relief, governed bythe provisions of the Specific Relief Act 1963. Even though the H

power of the Court to direct specific performance of an agreementmay have been discretionary, such power could not be arbitrary.The discretion had necessarily to be exercised in accordancewith sound and reasonable judicial principles. [Para 67][23-B-C]

4.2 Relief of specific performance of a contract is no longerdiscretionary, after the amendment of s. 10 of Specific Relief Act.After the amendment of Section 10, the Court is obliged to enforcethe specific performance of a contract, subject to the provisionsof sub-section (2) of Section 11, Section 14 and Section 16 of theAct. [Para 70][24-B-C]

5.1 An agreement to sell immovable property, generallycreates a right in personam in favour of the vendee. The vendeeacquires a legitimate right to enforce specific performance of theagreement. The Court ordinarily enforces a contract in its entiretyby passing a decree for its specific performance. However, Section12 of the Specific Relief Act carves out exceptions, where theCourt might direct specific performance of a contract in part.[Paras 71 and 72][24-D-E]

5.2 Where a party to the contract is unable to perform thewhole of his part of the contract, the Court may, in thecircumstances mentioned in Section 12 of the S.R.A., direct thespecific performance of so much of the contract, as can beperformed, particularly where the value of the part of the contractleft unperformed would be small in proportion to the total valueof the contract and admits of compensation. [Para 73][25-G-H;26-A]

5.3 Section 12 of the Specific Relief Act is to be construedand interpreted in a purposive and meaningful manner to empowerthe Court to direct specific performance by the defaulting party,of so much of the contract, as can be performed. To hold otherwisewould permit a party to a contract for sale of land, to deliberatelyfrustrate the entire contract by transferring a part of the suitproperty and creating third party interests over the same. Acontractee who frustrates a contract deliberately by his ownwrongful acts cannot be permitted to escape scot free.[Paras 87 and 88][28-F-H]

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A5.4 In the present case the vendee had apparently tenderedthe full consideration within the time stipulated in the agreementdated 21.3.1984, that is, within 45 days or if not 45, within 47/48days from the date of its execution. However, the vendorpurported to sell 100 square yards of the suit land to ‘P’ byexecuting a registered deed of conveyance in his favour. SinceBtitle in respect of 100 square yards had passed to ‘P’ and the suitfor specific performance was barred by limitation, the trial courtwas constrained to decree the suit for specific performance inpart, and direct that a Deed of Conveyance be executed in respectof the balance 200 square yards of the suit land, under theCownership and control of the vendor. [Paras 74, 76 and 86][26-B,E; 28-E]

6.1 After having entered into an agreement for sale of 300Sq. yards of land, with her eyes open, and accepted a major partof the consideration (Rs.45,000/- out of Rs.75,000/-) it does notDlie in the mouth of the vendor to contend that the contract shouldnot have specifically been enforced in part, in respect of thebalance 200 sq. yards of the suit land which the vendor still owned.It is patently obvious that the vendor did not disclose any earlieragreement to the vendee, as the agreement in writing dated21.3.1984, does not bear reference to any earlier agreement.E[Para 89][29-A-B]

6.2 Instead of awarding damages in respect of the part ofthe contract which could not be enforced and/or in other wordsdamages for breach of agreement to sell the entire suit land, thetrial court had reduced the total consideration by 1/3[rd] of theFagreed amount, in lieu of damages, as one third of the area agreedto be sold to the vendee could not be sold to her. The total priceagreed upon being Rs.75,000/- for the entire suit land, comprising300 square yards, the agreed price works out to Rs.25,000/- for100 square yards and/or Rs.2,500/- per square yard. The trialGcourt very fairly reduced the consideration by Rs.25,000/-, beingthe price of 100 square yards of land computed proportionally, inlieu of damages. The vendor can have no legitimate reason tocomplain. [Para 90][29-C-D]

7.1 A transferee to whom the subject matter of a saleHagreement or part thereof is transferred, is a necessary party to a suit for specific performance. The vendee omitted to implead‘P’. By the time she filed an application to implead ‘P’ in 1989,the suit for specific performance of the agreement dated 21.3.1984had become barred by limitation as against ‘P’. [Para 79][26-H; 27-A]

7.2 Under the Limitation Act 1963 the period of limitationfor filing a suit for specific performance is three years from thedate fixed for performance of the contract, or if no date is fixed,then three years from the date on which the vendee is put tonotice of refusal to perform the agreement (Item No.54 in Part IIof the Schedule to the Limitation Act 1963). [Para 80][27-B]

7.3 The vendee was put to notice of the refusal of the vendorto execute the agreement dated 21.3.1984, by the vendor’s letter/legal notice dated 20.6.1984. Any suit for specific performancewould be time barred by June/July 1987. Moreover, it is a matterof record that the vendee knew of the registered deed ofconveyance in favour of ‘P’, when she instituted the suit in 1984.The vendee neither amended her pleadings in the plaint noramended the prayers. ‘P’ was simply added defendant. The Courtadding ‘P’ as defendant in the suit for specific performance, didnot make any direction in terms of the proviso to Section 21(1) ofthe Limitation Act, that the suit against him be deemed to beinstituted at any earlier date. There could therefore be no questionof any relief against ‘P’ in the suit for specific performance.[Paras 82, 83][27-F-H; 28-A]

7.4 The suit for specific performance being time barredagainst ‘P’ and the suit against ‘P’ also having been dismissedfor non-joinder of the vendor, there could be no question ofnullifying the rights that had accrued to ‘P’ pursuant to the Deedof Conveyance dated 25.4.1984 executed by the vendortransferring 100 sq. yards of the suit land to ‘P’. Moreover, therewas apparently an agreement in writing executed between thevendor and ‘P’ on or about 25.01.1984 before execution of theagreement between the vendor and the vendee. [Para 85][28-C-D]

Durga Prasad and Anr. v. Deep Chand and Ors. AIR1954 SC 75 : [1954] SCR 360 – referred to.

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A7.5 The vendee did not implead the vendor as defendant inher later suit inter alia for a declaration that the Deed ofconveyance executed by the vendor in favour of ‘P’ was null andvoid. The suit has rightly been dismissed for non-joinder of thevendor as defendant. There could be no question of a documentbeing adjudged null and void without impleading the executantBof the document, as defendant. [Para 84][28-B]

8.1 Clubbing of suits for hearing them together and disposalthereof by a common judgment and order is for practical reasons.Such clubbing together of the suits do not convert the suits intoone action. The suits retain their separate identity. The clubbingCtogether is done for convenience, inter alia, to save time, costs,repetition of procedures and to avoid conflicting judgments. [Para91][29-E-F]

Mahalaxmi Coop. Housing Society Ltd. and Ors. v.Ashabhai Atmaram Patel (D) thr. Lrs. and Ors. (2013)D4 SCC 404 : [2013] 6 SCR 1 – relied on.

8.2 It is not correct to say that the Court is under anobligation to reject the subsequent suit, irrespective of whetherobjection of bar under Order II Rule 2 of the CPC was raised ornot. The plea of bar under Order II Rule 2 of the CPC is a technicalEplea which has to be pleaded and satisfactorily established. If theplea of bar under Order II Rule 2 is not taken, the Court shouldnot suo motu decide the plea. The plea cannot be raised beforethis Court if not raised in the High Court. [Paras 92, 93][29-H;30-A-B]

FR. A. Oswal v. Deepak Jewellers and Ors. (1999) 6 SCC40; Dalip Singh v. Mehar Singh Rathee and Ors. (2004)7 SCC 650 – relied on.

Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3574of 2009.

From the Judgment and Order dated 07.09.2006 passed by theHigh Court of Judicature of Andhra Pradesh at Hyderabad in AS No.1785 of 1994.

With

C.A. Nos. 3575-3577 of 2009

K. Radhakrishnan, Sr. Adv., T. Bhaskar Gowtham, AbhijitSengupta, S. Thananjayan, Ms. Promila, Vinay Navare, Aman Shukla,Vishal Arun, Advs. for the appearing parties.

The Judgment of the Court was delivered by INDIRA BANERJEE, J.

1. These appeals are against a common judgment and order passedby the High Court of Judicature of Andhra Pradesh at Hyderabaddismissing the appeals being A.S. Nos.892 of 1994, 893 of 1994, 894 of1994 and 1785 of 1994 and inter alia confirming the judgment and decreeof the Trial Court in O.S.No.20 of 1993 and OS No. 91 of 1993 and thedecree of dismissal by the Trial Court of the Suit being O.S.No.92 of1993.

2. The Appellant No.1, in Civil Appeal No. 3574 of 2009, B.Santoshamma, hereinafter referred to as the ‘Vendor’, wife of theAppellant No.2 in the said appeal, B. Darshan Reddy, purchased 300square yards of land, in survey No. 262 of Hayathnagar Village andTaluk in Ranga Reddy District, hereinafter referred to as the ‘suit land’,from one D. Tanesha, under a registered sale deed dated 20[th] August,1982.

3. After about ten days, the Vendor allegedly entered into an oralagreement with the proforma respondent in the said appeal, P. PratapReddy, for sale of 100 sq. yards out of the suit land in his favour, for atotal consideration of Rs.3000/-, out of which Rs.2,500/- was paid inadvance. The Vendor claims to have delivered possession of the said100 sq. yards to Pratap Reddy on the date of the oral agreement itself.

4. On or about 20[th] January, 1984, the alleged oral agreementbetween the Vendor and Pratap Reddy was allegedly reduced intowriting, upon payment of the balance consideration of Rs.500/-. The A

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AVendor and her husband allegedly agreed to execute the sale deed on anauspicious day, after consulting the family priest.

5. On 21[st] March, 1984, the Vendor entered into an agreementwith the contesting respondent in Civil Appeal No. 3574 of 2009, Smt D.Sarala, hereinafter referred to as the Vendee, for sale of the suit land toBthe Vendee, for a total consideration of Rs.75,000/-, out of whichRs.40,000/- was paid by the Vendee to the Vendor in advance. TheVendor claims to have informed the Vendee of the oral agreement withPratap Reddy, which had been reduced to writing on 20[th] January, 1984.The Vendor and her husband Darshan Reddy contend that the Vendorhad also specifically informed the Vendee that the Vendor had receivedCthe sale consideration for 100 sq. yards from Pratap Reddy, and haddelivered possession of 100 sq. yards of land to him.

6. The Vendor has alleged that she specifically requested theVendee to incorporate a clause with regard to the earlier agreementwith Pratap Reddy in the sale agreement between the Vendor and theDVendee. However, the Vendee assured the Vendor that she would getthe earlier agreement with Pratap Reddy cancelled as her husband knewPratap Reddy well and had already spoken to Pratap Reddy. Accordingto the Vendor, the Vendee represented to the Vendor, that there was noneed for the Vendor to get any clearance from Pratap Reddy as theEVendee and her husband had been assured by Pratap Reddy that nodifficulty would be created by him.

7. On or about 25 May, 1984, that is, about two months afterexecution of the sale agreement with the Vendee, the Vendor executeda registered deed of conveyance transferring 100 sq. yards of the suitFland in favour of Pratap Reddy. The Vendor and her husband DarshanReddy, as also Pratap Reddy, have alleged that the Vendee had tried tointerfere with Pratap Reddy’s possession of 100 sq. yards of the suitland.

8. On or about 20[th] June, 1984, the Vendor allegedly issued noticeGto the Vendee contending that the agreement of sale dated 21[st] March,1984 was conditional upon clearance from Pratap Reddy in view of theearlier agreement of the Vendor with Pratap Reddy for sale of 100 sq.yards of the suit. The purported notice, if any, was issued after executionof the registered deed of conveyance, for sale of 100 sq. yards of thesuit land in favour of Pratap Reddy.H

9. On 22[nd] June, 1984, the Vendor’s husband, Darshan Reddy,lodged a complaint with the Station House Officer, Hayathnagar, allegingthat the original sale deed of the suit land in favour of the Vendor inrespect of the suit land had been stolen from his residence, alongwithother documents.

10. By a letter dated 28[th] June, 1984, the Vendee replied to thenotice, contending that the document had been handed over by the Vendorto the Vendee. Sometime thereafter, the Vendee filed a suit beingO.S.No.222 of 1984 in the Court of the Principal Subordinate Judge,Rangareddy District, for specific performance of the agreement of saledated 21[st] March, 1984. In the said suit, the Vendee, being the plaintiff,claimed delivery of possession of 300 sq. yards of land from the Vendor.Pratap Reddy was not impleaded defendant in the said suit for specificperformance of the Agreement dated 21.3.1984. Later the Vendee filedan application being I.A.No.44 of 1989 for impleading Pratap Reddy,pursuant to which an order dated 5[th] April, 1989 was passed wherebyPratap Reddy was added as defendant No.3 in the said suit.

11. In the meanwhile, in 1985, Pratap Reddy filed a suit beingO.S.No.190 of 1985 in the court of the Principal District Munsif,Hyderabad East and North, seeking a decree of perpetual injunctionrestraining the Vendee from interfering with his possession over 100 sq.yards of the suit land.

12. In the suit filed by Pratap Reddy, it was alleged that he wasnot aware of any agreement of sale between the Vendor and the Vendeein respect of the suit land or of payment of Rs.40,000/- to the Vendee interms thereof.

13. It is the case of Pratap Reddy, that even if the Vendee hadentered into any agreement as alleged with the Vendor, there could beno question of sale of 100 sq. yards of the suit land earlier agreed to besold to Pratap Reddy, and actually sold to Pratap Reddy by a registereddeed of conveyance dated 25.5.1984.

14. The Vendee also filed a suit being O.S.No.401 of 1985 againstPratap Reddy in the Court of Principal District Munsif, Hyderabad for adeclaration that the agreement between the Vendor and Pratap Reddywith regard to 100 sq. yards was null and void. The Vendor was notimpleaded as party to the said suit.

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A15. On or about 19[th] July, 1989, the Vendor and her husbandDarshan Reddy filed their Written Statement in O.S.No.222 of 1984subsequently renumbered as O.S.No.20 of 1993 being the suit for specificperformance of the sale agreement between the vendor and the Vendee,which is hereinafter referred to as the suit for specific performance.Pratap Reddy also filed his written statement in the suit for specificBperformance. The three suits have, from time to time, been renumbered.

16. The suit for specific performance, which had been transferredto the Additional District Court of Rangareddy District and renumberedO.S.No.20 of 1993, was clubbed for hearing along with Suit No.190 of1985, renumbered as O.S.No.91 of 1993 and O.S.No.702 of 1991Crenumbered as O.S.No.92 of 1993.

17. The Trial Court framed the following issues in the suit beingO.S No.20/1993, that is the suit for specific performance:

“1. Whether the plaintiff (sic the Vendee) was put in possessionDof the suit plot admeasuring 300 sq. yards?

2. Whether the suit agreement of sale was subject to theclearance of any agreement of sale of 100 sq. yards out ofthe suit plot in favour of one Sri. P. Pratap Reddy?

3. Whether the sale of 100 sq. yards out of the suit plot to Sri.EP. Pratap Reddy is true and binding on the plaintiff.(sic theVendee)

4. Whether the suit is bad for non-joinder of necessaryparties?

5. Whether the defendants (Sic the Vendor) committed breachFof contract of sale?

6. Whether plaintiff is entitled to the specific performance ofthe suit agreement of sale?

GAn additional issue was framed as to whether 3[rd] defendant, thatis Pratap Reddy, was a bona fide purchaser of 100 square yards of thesuit land.

18. In O.S.No.91/1993, being the suit for injunction filed by PratapReddy, the Trial Court framed the following issues:

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“1.Whether the plaintiff (sic Pratap Reddy) is entitled toperpetual injunction as prayed for?

2. To what relief?”

The following additional issue was also framed:

“Whether the plaintiff (sic Pratap Reddy) is entitled to thedeclaration and possession sought?”

19. In Original Suit No.92 of 1993, being the suit for declaration,filed by the Vendee against Pratap Reddy, the following issues wereframed:

“1. Whether the suit is bad for non-joinder of parties?

2. Whether the plaintiff (sic Vendee) is entitled to declarationas prayed for?

3. Whether the defendants are entitled to exemplary costs ofRs.3,000/-?

20. By a common judgment and decree dated 30[th] March, 1994,the learned District Judge, Rangareddy disposed of all the three suits.The suit for specific performance was allowed, in part, holding that theVendee, was not entitled to seek specific performance of the agreementin respect of 100 sq. yards covered by the sale deed dated 25[th] May,1984, but entitled to relief of specific performance in respect of theremaining 200 sq. yards of the suit land. The Vendee’s suit for declarationagainst Pratap Reddy was dismissed for non- joinder of the Vendor.

21. Since Exhibit A-1, being the sale agreement dated 21[st] March,1984 between the Vendor and the Vendee showed that the saleconsideration for 300 sq. yards land was fixed at Rs.75,000, which meantthat the price fixed per sq. yard was Rs.250/-, the Court held that theVendee had to pay Rs.50,000/- to the Vendor, towards sale consideration.As the Vendee was found to have paid Rs.40,000/- under Ex.A1 and afurther Rs.5,000/- under the receipt being Ex.A3, the Trial Courteffectively held that the Vendee was liable to pay a further sum ofRs.5,000/- to the Vendor. The Vendee was directed to depositRs.5,000/- in Court towards the balance sale consideration payable byher, on or before 15[th] April, 1994, whereupon the Vendor would have toexecute a sale deed in respect of 200 sq. yards from out of the suit land, A

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Ain favour of the Vendee. In case of failure to deposit Rs.5,000/- in Courtwithin the time stipulated, the suit would stand dismissed.

22. Being aggrieved, by the judgment and order referred to above,the Vendor filed an appeal in the High Court, against the judgment anddecree in the suit for specific performance being O.S. of 1993 whichBwas numbered as A.S. 1785 of 1994. The Vendee also filed three appealsbeing A.S. No.892 of 1994 against the judgment and decree in O.S.No.91of 1993, an appeal being A.S.No.893 of 1994 against the judgment anddecree in O.S.No.20 of 1993 and an appeal being A. S. No.894 of 1994against the judgment and decree in O.S.No.92 of 1993.

C23. By a common judgment and order dated 7[th] September 2006,which is under appeal in this Court, the High Court inter alia dismissedall the appeals that is A.S. Nos.892, 893, 894 filed by the Vendee andA.S. No.1785 of 1994 filed by the Vendor and confirmed the judgmentpassed by the Trial Court. While the appeal being C.A. No.3574 of 2009has been filed by the Vendor, the three appeals being C.A. Nos.D3575-3577, have been filed by the Vendee.

24. Mr. Gowtham appearing on behalf of the appellant in C.A.3574 of 2009 being the Vendor submitted that the agreement dated21[st] March, 1984 between the Vendor and Vendee was liable to becancelled as the Vendee had defaulted in making payment of the balanceEamount within the time stipulated in the said agreement.

25. Mr. Gowtham argued that there was a clause in the agreementdated 21.3.1984 executed by and between the Vendor and the Vendee,in terms whereof the Vendor agreed to register the sale deed in favourof the Vendee, within 45 days from the date of the said agreement,Fsubject to receipt of the full consideration amount within 4.5.1984.Mr. Gowtham submitted that full payment was not made within theaforesaid date. The appellants after waiting for 20 more days, executedand registered a sale deed in favour of Pratap Reddy in respect of 100square yards of land.

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G26. Mr. Gowtham argued that the sale agreement was conditionalupon cancellation of the prior agreement with Pratap Reddy. It wasargued that the Vendee, who knew of the pre-existing agreementbetween the Vendor and Pratap Reddy, had assured the Vendor that sheand/or her husband had already spoken to Pratap Reddy, to get theagreement between the Vendee and Pratap Reddy cancelled.H

27. Mr. Gowtham emphatically argued that the agreement dated21.3.1984 was a composite agreement for sale of 300 sq. yards of landfor a lump sum consideration of Rs.75,000/-. Since it was not possible tosell 300 sq. yards to the Vendee as per the sale agreement, the saleagreement became infructuous and incapable of specific performance.There was no scope for sale of 200 sq. yards of land at a reducedconsideration.

28. Mr. Gowtham argued that there could be no question of anydecree of specific performance of the agreement dated 21.3.1984 infavour of the Vendee, in the absence of readiness and willingness on thepart of the Vendee to perform her obligations under the agreement.

29. The Vendor and her husband Darshan Reddy contended thatthey had not refused to execute the registered sale deed as alleged. Itwas the contesting respondent who had failed to bring about a settlementwith Pratap Reddy as agreed, and had also failed to pay the balanceconsideration within the time stipulated in the agreement. Time being ofessence to the agreement, it could not be specifically enforced.

30. The Vendor and her husband Darshan Reddy also assertedthat the Vendee was also not ready to pay the balance sale considerationand had sought further time for payment on the ground that he did nothave the money. The suit for specific performance was thus, notmaintainable. In any case, the agreement for sale of 300 sq. yards ofland to the Vendee was incapable of performance, since the appellantdid not have 300 sq. yards of land.

31. The Vendor and her husband Darshan Reddy have categoricallydenied that they had delivered possession of 300 sq. yards of land to theVendee. They have asserted that the Vendee had taken possession of200 sq. yards of land, 100 sq. yards having been transferred to PratapReddy.

32. Mr. Radhakrishnan appearing on behalf of the Vendee arguedthat the Vendee should have been granted specific performance of theagreement dated 21.3.1984 in its entirety. The Court should have setaside the purported sale deed in respect of 100 sq. yards of land infavour of Pratap Reddy and directed the Vendor to sell the entire suitproperty comprising 300 sq. yards to the Vendee.

33. Mr. Radhakrishnan argued that the purported sale agreementof the Vendor with Pratap Reddy was not genuine. It is difficult to believe A

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Athat the Vendor would, within 11 days from purchase of 300 sq. yards ofland (the suit land), enter into an agreement for sale of 100 sq. yards outof the suit land.

34. Mr. Radhakrishnan further argued that the execution andregistration of the sale deed in favour of Pratap Reddy in respect of 100Bsq. yards of land, was in any case, subsequent to the Agreement dated21.3.1984 between the Vendor and the Vendee.

35. Mr. Radhakrishnan emphatically argued that the agreementdated 21.3.1984 was for sale by the Vendor, to the Vendee of 300 sq.yards for a consideration of Rs.75,000/-, pursuant to which possessionCof the entire 300 sq. yards of land was delivered to the Vendee. Thishas, of course, been denied by the Vendor.

36. Refuting the contention advanced by the Vendor, of want ofreadiness and willingness on the part of the Vendee, to perform herobligations under the Agreement dated 21.3.1984, Mr. RadhakrishnanDfurther argued that, the fact that the Vendee had paid Rs.40,000/- to theVendor on the date of execution of the sale agreement itself, apart fromRs.5,000/- which the Vendee had admittedly paid to Darshan Reddy(husband of the Vendor), demolishes the contention of the Vendor. Thesepayments towards part consideration were duly acknowledged.

E37. Mr. Radhakrishnan pointed out that on 30.4.1984 the Vendeeapproached the Vendor and her husband with the balance amount ofRs.30,000/- and requested them to register the sale deed, but the Vendorand her husband refused to receive the amount and instead requestedthe Vendee to make the payment by Demand Draft.

F38. According to the Vendee, the Vendee obtained a DemandDraft No.463961 dated 4.5.1984 for Rs.30,000/- from Canara Bank, butthe Vendor did not accept the same. On 25.5.1984 the Vendee issued alegal notice. Receipt of the legal notice was duly acknowledged by theVendor and her husband. A further legal notice was issued by the Vendeeon 12.8.1984. In the meanwhile, by a letter dated 20.6.1984 in reply toGthe legal notice of 25.5.1984, the Vendor admitted receipt ofRs.45,000/-, but claimed that the agreement was subject to the Vendeesecuring the approval of Pratap Reddy, to end the earlier agreementbetween the Vendor and Pratap Reddy, for transfer of 100 sq. yards ofland to Pratap Reddy.

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39. Mr. Radhakrishnan concluded his arguments with thesubmission that the Vendee had not delayed performance of herobligations under the agreement dated 21.3.1984. Within 30.4.1984 theentire consideration was tendered but unfortunately not accepted by theVendor with ulterior intent of resiling from her obligations under the saidargument to transfer the suit property to the Vendee. By 4[th] May, 1984,that is within 47 days from the date of the agreement dated 21.3.1984the Vendee was ready with a Demand Draft for the balance Rs.30,000.

40. Mr. Navare appearing on behalf of Pratap Reddy submittedthat the Appeals are all liable to be dismissed. First of all, on the date onwhich the Vendee filed the suit for specific performance of the agreementagainst the Vendor and her husband, she was aware of the registeredsale deed executed by the Vendor in favour of Pratap Reddy, in respectof 100 sq. yards of land. Yet the Vendee filed a suit against the Vendorand her husband, for specific performance of the agreement in whichPratap Reddy was not impleaded defendant. There was no challenge tothe sale deed in favour of Pratap Reddy.

41. Mr. Navare argued that the Vendee filed a second suit againstPratap Reddy for a declaration that the sale deed executed by the Vendorin his favour was void, without impleading the Vendor.

42. Mr. Navare pointed out that as late as on 5.4.1989, the Vendeefiled an application for impleading Pratap Reddy as defendant in her suitfor specific performance filed in 1984. The Vendee only added PratapReddy. There was no amendment either in the pleadings or in the prayers.The reliefs claimed by the Vendee in the suit for specific performancewere thus barred by limitation, as against Pratap Reddy in the absenceof any clarification by the Trial Court, as required under Section 21 ofthe Limitation Act, 1963.

43. Mr. Navare further submitted that, there being no prayer againstPratap Reddy in the suit for specific performance, Pratap Reddy wouldnot be bound to join the original owner, in execution of the deed ofconveyance in favour of the Vendee. In support of his submission Mr.Navare cited Durga Prasad and Anr. v. Deep Chand and Ors.[1].

44. Mr. Navare submitted that the Vendee chose not to challengethe registered sale deed in favour of Pratap Reddy or to seek any reliefagainst Pratap Reddy in the Suit for Specific Performance. Failure to 1 AIR 1954 SC 75

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Amake any such prayer amounted to relinquishment of the claim to suchrelief, in view of Order II Rule 2 of the Code of Civil Procedure (CPC).

45. Mr. Navare submitted that the second suit filed by the Vendeeis bad for non-joinder of the Vendor. A registered sale deed executed bythe Vendor cannot be declared void in her absence.

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46. Mr. Navare concluded that the second suit was also hit byOrder II Rule 2, and was thus barred under the law. In any case, thesecond suit filed by the Vendor was only for a declaration and there wasno prayer for any consequential relief. The second suit was thus hit bySection 34 of the Specific Relief Act, 1963.

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47. Mr. Navare finally referred to Section 50(1) of the RegistrationAct, 1908 set out hereinbelow for convenience:

“(1) Every document of the kinds mentioned in clauses (a),(b), (c), and (d) of section 17, sub-section (1), and clauses(a) and (b) of section 18, shall, if duly registered, take effectDas regards the property comprised therein, against everyunregistered document relating to the same property, and notbeing a decree or order, whether such unregistered documentbe of the same nature as the registered document or not.”

48. Referring to Section 50, Mr. Navare argued that a registeredEsale deed with respect to a property will take effect over any unregistereddocument, with respect to the same property.

49. Mr. Navare submitted that Pratap Reddy had also filed a suitfor declaration and possession being O.S. No.190/1985. All 3 suits wereclubbed together and heard together. However,F

(i) consolidation of 3 suits does not convert 3 suits into one action.

(ii) Consolidation of suits is for practical reasons such as, savingcosts, time and efforts of the parties, convenience of the parties,avoiding repetitive exercises in 3 suits and avoiding conflict ofjudgment in the 3 suits. However, the 3 suits consolidated/Gclubbed together retain their separate identity. In support ofhis argument Mr. Navare cited Mahalaxmi Coop. HousingSociety Ltd. and Ors. v. Ashabhai Atmaram Patel (D) thr.Lrs. and Ors.[2].

H2 (2013) 4 SCC 404 [41]

50. Mr. Navare emphatically argued that the right which haveaccrued to Pratap Reddy, as a result of defective suits filed by the Vendee,cannot stand abrogated by consolidation of the suits. There is no provisionin the CPC which permits a party to be deprived of such accrued, rightbecause of defects in the suit.

51. Mr. Navare submitted that the bar of the second suit underOrder II Rule 2 of the CPC is not a defect of a technical nature. Themandate of Order II Rule 2 requiring the Vendor to claim all reliefs inrespect of the same cause of action arising out of one suit, is a provisionof a substantive nature, and not of a technical nature. It is based onlegislative policy.

52. Mr. Navare argued that although, no objection of bar underOrder 2 Rule 2 of CPC was raised in the suit, by Pratap Reddy, thatdoes not make any difference for the following reasons:

(i) Order II Rule 7 requires only objection as to mis-joinder ofcauses of action, to be taken at the earliest opportunity,before issues are settled, and otherwise such objection isdeemed to be waived.

(ii) Similarly, Section 21 of the CPC specifically provides that,any objection as to the place of suing must be raised at theearliest opportunity, before issues are settled and the samecannot be raised in Appellate or Original Court for the firsttime.

(iii) Legislature has specifically clarified the cases where theraising of an objection is necessary. There is no provision inthe CPC with respect to objection under Order II Rule 2.The maxim “Expressum facitcessaretacitum” (Expressmention of one thing excludes the other) squarely applieshere.

(iv) There is a bar of Law prescribed by Order II Rule 2 againstthe second suit. It is a kind of bar contemplated under OrderVII Rule 11 (d). The power of the Court under Order VIIRule 11(d) is in the following words “the Plaint shall berejected...” Thus, it casts an obligation on the Court to rejectthe same. Irrespective of whether an objection is raised bythe defendant in the suit or not, the consequence must follow.

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A53. Mr. Navare concluded that this Court might decline to invokejurisdiction under Article 136 of the Constitution, even if an impugnedorder is illegal. This Court should certainly not invoke its jurisdictionunder Article 136 to reverse the judgment, thereby effectively validatingthe second suit, although it is barred by Order II Rule 2 of CPC. TheAppeal should therefore be dismissed.B

54. It is not in dispute that the Vendor agreed to sell the entire suitland comprising 300 square yards to the Vendee for a consideration ofRs.75,000/-. The agreement dated 21.3.1984 is admitted by the Vendor.

55. It is also not in dispute that the Vendee paid Rs.40,000/- to theCVendor on the date of the agreement itself and also paid a sum ofRs.5,000/- to the Vendor’s husband, which was duly acknowledged.

56. The defence of the Vendor that the Vendee was unable and/or unwilling to perform her obligations under the agreement dated21.3.1984 has been rejected by the Trial Court, as also the AppellateDCourt, that is, the High Court.

57. The finding of the Trial Court, affirmed by the High Court thatthe Vendee was ready and willing to perform her obligations under theagreement dated 21.3.1984, which is based on evidence and supportedby cogent reasons, is unexceptionable as discussed hereinafter.

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58. The contention of the Vendor, that the agreement dated21.3.1984 was subject to the condition that the Vendee would get theearlier agreement between the Vendor and Pratap Reddy cancelled,cannot be accepted for the following reasons:

(i) The agreement dated 21.3.1984, which is in writing doesFnot incorporate any such condition.

(ii) It is incredible that the Vendor, who knew Pratap Reddy, towhom she had, as per her own assertion, agreed to sell 100square yards of land, should proceed on the basis of analleged assurance of the Vendee, that Pratap Reddy wouldGrelinquish his rights under the earlier agreement betweenthe Vendor and Pratap Reddy, without ascertaining fromPratap Reddy, whether Pratap Reddy was actually readyto relinquish his rights under the said earlier agreementwith her.

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(iii) Pratap Reddy has denied knowledge of the agreementAbetween the Vendor and the Vendee.

(iv) Within a month and a few days from the date of executionof the agreement between the Vendor and the Vendee, afterthe Vendee tendered full consideration, the Vendor executeda registered deed of conveyance in favour of Pratap Reddy,without any prior intimation to the Vendee, and without givingthe Vendee any opportunity to persuade Pratap Reddy toabrogate his earlier agreement with the Vendor.

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59. It is well settled that the onus of proof lies on the party whomakes an allegation. It was for the Vendor to establish that the agreementdated 21.3.1984 was subject to the condition as alleged by the Vendor,that the Vendee and/or her husband would negotiate with Pratap Reddyto get his earlier agreement with the Vendor cancelled. The Vendorfailed to discharge her onus of proving that there was such a condition inthe agreement dated 21.3.1984. The Trial Court and the High Courtrightly did not believe the Vendor.

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60. The effective concurrent finding of the High Court and theTrial Court, that the Vendee had been ready and willing to perform andhad in fact performed her obligations under the Agreement dated21.3.1984, is also unexceptionable for the following reasons:

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(i) As observed above, the Vendee paid Rs.40,000/- out of thetotal consideration of Rs.75,000/- on the date of executionof the Agreement dated 21.3.1984 itself.

(ii) It is not disputed that the Vendee paid a further Rs.5,000/-to the Vendor’s husband against a receipt.

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(iii) It is the Vendor’s own case that in terms of the Agreementdated 21.3.1984, the full consideration was to be paid within45 days. The Vendee’s claim that she tendered Rs.30,000/- on 30.4.1984 was not disputed by the Vendor in her legalnotice/letter dated 20.6.1984.

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(iv) In any case the Vendee obtained Demand Draft No.463961dated 4.5.1984 for Rs.30,000/- in favour of the Vendortowards balance consideration, within 47 days from theexecution of the Agreement dated 21.3.1984.

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A(v)It is well settled that time is not of essence to agreementsfor sale of immovable property, unless the agreementspecifically and expressly incorporates the consequence ofcancellation of the agreement, upon failure to comply witha term within the stipulated date.

61. The concurrent findings of the High Court and the Trial Courtthat the Vendee was ready and willing to perform and had performedher obligations under the Agreement dated 21.3.1984, which as observedabove, are based on evidence and sound reasons, do not call forinterference of this Court.

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62. It is true that the Trial Court had directed the Vendor to paythe balance of Rs.5,000/- on or before 15.4.1994, failing which the suitfor specific performance would stand dismissed. However, any timegranted by the Court at its discretion, can always be extended by theCourt.

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63. In any case, the Vendor had filed an appeal against the decreein the suit for specific performance. The Vendee, who had been litigatingfor about 10 years by April, 1994 and had already paid Rs.45,000/- over10 years ago, but not got the suit land, could not be expected to put inmore money, until the decree assumed finality, upon disposal of the appeal.

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E64. Since there was an appeal of the Vendor pending, the failureof the Vendee to put in Rs.5,000/- within the time stipulated by Court,wold not, in itself, disentitle the Vendee to the relief of specificperformance. It was for the Court to decide whether or not to extendthe time for payment of Rs.5,000/-. The Appellate Court rightly expressedits discretion in favour of the Vendee.F

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65. The question is, whether as argued by Mr. Gowtham, theHigh Court erred in affirming the common judgment of the Trial Courtunder appeal before the High Court, whereby the Trial Court allowedthe suit for specific performance in part, holding that the Vendee wasentitled to relief of specific performance in respect of 200 square yardsGof land covered by the Agreement dated 21.3.1984 (that is, less 100 sq.yards sold to Pratap Reddy by a registered deed of conveyance dated25.4.1984), at a reduced consideration of Rs.50,000/-, since the agreementdated 21.3.1984 was a composite agreement for sale of 300 sq. yards ofland at a lump sum consideration of Rs.75,000/-.

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66. While Mr. Gowtham has argued that the Courts should not atall have allowed specific performance of the Agreement dated 21.3.1984,Mr. Radhakrishnan has argued that the conveyance in favour of PratapReddy should have been adjudged and declared a nullity, and the suit forspecific performance allowed in full, by directing the execution andregistration of a Deed of Conveyance, in respect of the entire suit land.

67. The relief of specific performance of an agreement, was atall material times, equitable, discretionary relief, governed by theprovisions of the Specific Relief Act 1963, hereinafter referred to asS.R.A. Even though the power of the Court to direct specific performanceof an agreement may have been discretionary, such power could not bearbitrary. The discretion had necessarily to be exercised in accordancewith sound and reasonable judicial principles.

68. Section 10 of the S.R.A. as it stood prior to its amendmentwith effect from 1.10.2018 provided:- “10. Cases in which specific performance of contractenforceable.- Except as otherwise provided in this Chapter,the specific performance of any contract may, in the discretionof the court, be enforced- (a) when there exists no standard for ascertaining actualdamage caused by the non-performance of the actagreed to be done; or (b) when the act agreed to be done is such thatcompensation in money for its non-performance wouldnot afford adequate relief.

Explanation.- Unless and until the contrary is proved, thecourt shall presume-

(i) that the breach of a contract to transfer immovableproperty cannot be adequately relieved by compensationin money; and

(ii) that the breach of a contract to transfer movable propertycan be so relieved except in the following cases:- (a) where the property is not an ordinary article of commerce,or is of special value or interest to the plaintiff, or consistsof goods which are not easily obtainable in the market; A

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A(b) where the property is held by the defendant as the agentor trustee of the plaintiff.”

69. After amendment with affect from 1.10.2018, Section 10 ofthe S.R.A. provides:

10. Specific performance in respect of contracts.- The SpecificBperformance of a contract shall be enforced by the courtsubject to the provisions contained in sub-section (2) ofsection 11, section 14 and section 16.

70. After the amendment of Section 10 of the S.R.A., the words“specific performance of any contract may, in the discretion of the Court,Cbe enforced” have been substituted with the words “specific performanceof a contract shall be enforced subject to ...”. The Court is, now obligedto enforce the specific performance of a contract, subject to the provisionsof sub-section (2) of Section 11, Section 14 and Section 16 of the S.R.A.Relief of specific performance of a contract is no longer discretionary,after the amendment.D

71. An agreement to sell immovable property, generally creates aright in personam in favour of the Vendee. The Vendee acquires alegitimate right to enforce specific performance of the agreement.

72. It is well settled that the Court ordinarily enforces a contractEin its entirety by passing a decree for its specific performance. However,Section 12 of the Specific Relief Act carves out exceptions, where theCourt might direct specific performance of a contract in part. Section 12of the Specific Relief Act, 1963 is set out hereinbelow for convenience.

12. Specific performance of part of contract.-(1) Except asFotherwise hereinafter provided in this section the court shallnot direct the specific performance of a part of a contract.

(2) Where a party to a contract is unable to perform the wholeof his part of it, but the part which must be left unperformedby only a small proportion to the whole in value and admitsGof compensation in money, the court may, at the suit of eitherparty, direct the specific performance of so much of thecontract as can be performed, and award compensation inmoney for the deficiency.

(3) Where a party to a contract is unable to perform the wholeof his part of it, and the part which must be left unperformedeither- (a) forms a considerable part of the whole, thoughadmitting of compensation in money; or (b) does not admit of compensation in money, he is not entitled to obtain a decree for specific performance;but the court may, at the suit of other party, direct the party indefault to perform specifically so much of his part of thecontract as he can perform, if the other party-

(i) in a case falling under clause (a), pays or has paidthe agreed consideration for the whole of the contractreduced by the consideration for the part which mustbe left unperformed and a case falling under clause(b), [pays or had paid] the consideration for the wholeof the contract without any abatement; and

(ii) in either case, relinquishes all claims to theperformance of the remaining part of the contract andall right to compensation, either for the deficiency orfor the loss or damage sustained by him through thedefault of the defendant.

(4) When a part of a contract which, taken by itself, can andought to be specifically performed, stands on a separate andindependent footing from another part of the same contractwhich cannot or ought not to be specifically performed, thecourt may direct specific performance of the former part.

Explanation.- For the purposes of this section, a party to acontract shall be deemed to be unable to perform the wholeof his part of it if a portion of its subject matter existing at thedate of the contract has ceased to exist at the time of itsperformance.

73. Where a party to the contract is unable to perform the wholeof his part of the contract, the Court may, in the circumstances mentionedin Section 12 of the S.R.A., direct the specific performance of so muchof the contract, as can be performed, particularly where the value of the A

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Apart of the contract left unperformed would be small in proportion to thetotal value of the contract and admits of compensation.

74. The Court may, under Section 12 of the S.R.A. direct theparty in default to perform specifically, so much of his part of the contract,as he can perform, provided the other party pays or has paid theBconsideration for the whole of the contract, reduced by the considerationfor the part which must be left unperformed. In this case the Vendeehad apparently tendered the full consideration within the time stipulatedin the Agreement dated 21.3.1984, that is, within 45 days or if not 45,within 47/48 days from the date of its execution.

C75. As observed above, the Vendee admittedly paid Rs.40,000/-from out of the total consideration of Rs.75,000/- on the date of executionof the agreement, a further sum, of Rs.5,000/- sometime thereafter, whichwas duly acknowledged and also offered to pay the balanceRs.30,000/- within 30.4.1984 that is, within 45 days from the date ofexecution of the contract, which the Vendor did not accept. A DemandDDraft for equivalent amount of Rs.30,000/- was obtained from CanaraBank on 4.5.1984, that is the 47[th] day of the execution of the agreement.

76. Admittedly, a major portion of the full consideration, that is,Rs.45,000/- had already been paid by the Vendor to the Vendee and theVendor had been ready to and had offered to pay the entire balanceEconsideration to the Vendor. However, the Vendor purported to sell 100square yards of the suit land to Pratap Reddy by executing a registereddeed of conveyance in his favour.

77. As argued by Mr. Navare, a registered deed of conveyancetakes effect, as regards the property comprised therein, against everyFunregistered deed relating to the same property as provided in Section50 of the Registration Act.

78. The Vendee claimed specific performance of the agreementdated 21.3.1984 in its entirety, and sought execution and registration of adeed of conveyance in respect of the entire suit land comprising 300Gsquare yards, but without impleading Pratap Reddy to whom ownershipof 100 square yards of land had been transferred by a registered deed ofconveyance.

79. A transferee to whom the subject matter of a sale agreementor part thereof is transferred, is a necessary party to a suit for specificHperformance. Unfortunately, the Vendee omitted to implead Pratap Reddy. By the time she filed an application to implead Pratap Reddy, in1989, the suit for specific performance of the agreement dated 21.3.1984had become barred by limitation as against Pratap Reddy.

80. Under the Limitation Act 1963 the period of limitation forfiling a suit for specific performance is three years from the date fixedfor performance of the contract, or if no date is fixed, then three yearsfrom the date on which the Vendee is put to notice of refusal to performthe agreement (Item No.54 in Part II of the Schedule to the LimitationAct 1963).

81. Section 21 of the Limitation Act provides:

21. Effect of substituting or adding new plaintiff or defendant.-

(1) Where after the institution of a suit, a new plaintiff or,defendant is substituted or added, the suit shall, as regardshim, be deemed to have been instituted when he was so madea party:

Provided that where the court is satisfied that theomission to include a new plaintiff or defendant was due to amistake made in good faith it may direct that the suit as regardssuch plaintiff or defendant shall be deemed to have beeninstituted on any earlier date.

(2) Nothing in sub-section (1) shall apply to a casewhere a party is added or substituted owing to assignment ordevolution of any interest during the pendency of a suit orwhere a plaintiff is made a defendant or a defendant is madea plaintiff.

82. The Vendee was put to notice of the refusal of the Vendor toexecute the agreement dated 21.3.1984, by the Vendor’s letter/legalnotice dated 20.6.1984. Any suit for specific performance would be timebarred by June/July 1987. Moreover, it is a matter of record that theVendee knew of the registered deed of conveyance in favour of PratapReddy, when she instituted the suit in 1984.

83. The Vendee neither amended her pleadings in the plaint noramended the prayers. Pratap Reddy was simply added defendant. TheCourt adding Pratap Reddy as defendant in the suit for specificperformance, did not make any direction in terms of the proviso to Section21(1) of the Limitation Act, that the suit against Pratap Reddy be deemed A

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Ato be instituted at any earlier date. There could therefore be no questionof any relief against Pratap Reddy in the suit for specific performance.

84. The Vendee did not implead the Vendor as defendant in herlater suit (Original Suit No.401 of 1985, renumbered Original Suit No.92of 1993) inter alia for a declaration that the Deed of conveyance executedBby the Vendor in favour of Pratap Reddy was null and void. The suit hasrightly been dismissed for non joinder of the Vendor as defendant. Therecould be no question of a document being adjudged null and void withoutimpleading the executant of the document, as defendant.

85. The suit for specific performance being time barred againstCPratap Reddy, and the suit against Pratap Reddy also having beendismissed for non joinder of the Vendor, there could be no question ofnullifying the rights that had accrued to Pratap Reddy, pursuant to theDeed of Conveyance dated 25.4.1984 executed by the Vendortransferring 100 sq. yards of the suit land to Pratap Reddy. Moreover,there was apparently an agreement in writing executed between theDVendor and Pratap Reddy on or about 25.01.1984 before execution ofthe agreement between the Vendor and the Vendee.

86. Since title in respect of 100 square yards had passed to PratapReddy and the suit for specific performance was barred by limitation,the Trial Court was constrained to decree the suit for specific performanceEin part, and direct that a Deed of Conveyance be executed in respect ofthe balance 200 square yards of the suit land, under the ownership andcontrol of the Vendor.

87. Section 12 of the SRA is to be construed and interpreted in apurposive and meaningful manner to empower the Court to direct specificFperformance by the defaulting party, of so much of the contract, as canbe performed, in a case like this. To hold otherwise would permit a partyto a contract for sale of land, to deliberately frustrate the entire contractby transferring a part of the suit property and creating third party interestsover the same.G88. Section 12 has to be construed in a liberal, purposive mannerthat is fair and promotes justice. A contractee who frustrates a contractdeliberately by his own wrongful acts cannot be permitted to escapescot free.

89. After having entered into an agreement for sale of 300 Sq.yards of land, with her eyes open, and accepted a major part of theconsideration (Rs.45,000/- out of Rs.75,000/-) it does not lie in the mouthof the Vendor to contend that the contract should not have specificallybeen enforced in part, in respect of the balance 200 sq. yards meters ofthe suit land which the Vendor still owned. It is patently obvious that theVendor did not disclose any earlier agreement to the Vendee, as discussedabove. The agreement in writing dated 21.3.1984, does not bear referenceto any earlier agreement, as noted above.

90. Instead of awarding damages in respect of the part of thecontract which could not be enforced and/or in other words damagesfor breach of agreement to sell the entire suit land, the Trial Court reducedthe total consideration by 1/3[rd] of the agreed amount, in lieu of damages,as one third of the area agreed to be sold to the Vendee could not be soldto her. The total price agreed upon being Rs.75,000/- for the entire suitland, comprising 300 square yards, the agreed price works out toRs.25,000/- for 100 square yards and/or Rs.2,500/- per square yard.The Trial Court very fairly reduced the consideration by Rs.25,000/-,being the price of 100 square yards of land computed proportionally, inlieu of damages. The Vendor can have no legitimate reason to complain.

91. Since we have upheld the dismissal of Suit No.92/1993 filedby the Appellant against Pratap Reddy, it is not really necessary to gointo the question of whether the said suit was barred under Order IIRule 2 of the Civil Procedure Code as contended by Mr. Navare. It istrue that, the clubbing of suits for hearing them together and disposalthereof by a common judgment and order is for practical reasons. Suchclubbing together of the suits do not convert the suits into one action asargued by Mr. Navare. The suits retain their separate identity as held inMahalaxmi Coop. Housing Society Ltd. and Ors. v. AshabhaiAtmaram Patel (supra). The clubbing together is done for convenience,inter alia, to save time, costs, repetition of procedures and to avoidconflicting judgments.

92. We are, however, unable to agree with Mr. Navare’s argumentthat the Court is under an obligation to reject the subsequent suit,irrespective of whether objection of bar under Order II Rule 2 of theCPC was raised or not.

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A93. The plea of bar under Order II Rule 2 of the CPC is a technicalplea which has to be pleaded and satisfactorily established. In R. A.Oswal v. Deepak Jewellers and Ors.[3], this Court held that if the pleaof bar under Order II Rule 2 is not taken, the Court should not suo motodecide the plea. Moreover, in Dalip Singh v. Mehar Singh Ratheeand Ors.[4], this Court held that the plea cannot be raised before thisBCourt if not raised in the High Court.

94. We find no such infirmity in the judgment and order of theHigh Court under appeal, confirming the judgment and order of the TrialCourt, that calls for interference of this Court. The High Court has rightlydismissed the appeals from the judgment of the Trial Court.

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95. These appeals are, therefore, dismissed.

Kalpana K. Tripathy

Appeals dismissed.

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4 (2004) 7 SCC 650