Conduct Of A Plaintiff Is Very Crucial In A Suit For Specific Performance: SC [Read Judgment]

The conduct of a plaintiff is very crucial in a suit for specific performance, observed the Supreme Court while dismissing a civil appeal on Monday.

The plaintiff in this case was a party to agreement for sale dated 12.10.1994. The date for performance of the contract was fixed under the agreement as 07.10.1996. After more than three years, the plaintiff filed a suit only for the relief of mandatory injunction, which he valued  only at Rs.250 and paid a fixed court fee of Rs.25.

On an application filed by defendant challenging the maintainability of the suit, the Trial Court held that the suit was in fact one for specific performance of an agreement of sale and that the technical objection regarding the maintainability could be overcome by directing the petitioner/plaintiff to pay the requisite court fee. Thereafter plaintiff paid the deficit court fee and the trial court chose to treat the suit as one for specific performance, which was ultimately decreed by it. This decree was later set aside by the First Appellate Court. The High Court, upholding the First Appellate Court judgment held the suit as time barred.

Before the Apex Court, the plaintiff contended that by virtue of Section 149 of the Code of Civil Procedure, such payment would have the same force and effect as if such fee had been paid in the first instance itself. On this contention, the bench comprising Justice NV Ramana and Justice V. Ramasubramanian said:

" 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 6 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 the court noted the dubious conduct of the plaintiff in filing the suit (after more than three years of the date fixed under the agreement of sale) only as one for mandatory injunction, and valuing the same as such and paying court fee accordingly, but chose to pay proper court fee after being confronted with an application for the dismissal of the suit. Clever ploys cannot always pay dividends, the bench said. Upholding the High Court judgment, it said:

"The conduct of a plaintiff is very crucial in a suit for specific performance. A person who issues a legal notice on 12.11.1996 claiming readiness and willingness, but who institutes a suit only on 13.10.1999 and that too only with a prayer for a mandatory injunction carrying a fixed court fee relatable only to the said relief, will not be entitled to the discretionary relief of specific performance. " 

Case name: Atma Ram vs. Charanjit Singh
Case no.: SLP (C) No.27598 of 2016
Coram: Justice NV Ramana and Justice V. Ramasubramanian
Counsel: Sr. Adv R Basant for petitioner Adv Soumen Talukdar for Respondent

Click here to Read/Download Judgment

Read Judgment