A. K. Jain v. Vipin Wadhwa & Ors.

1. The present appeal arises out of an order rejecting the appellant's suit on the basis of an application under Order VII Rule 11 CPC preferred by the second and third defendants - arrayed here as second and third respondents.

2. Briefly the facts are that the plaintiff/appellant claimed to have entered into an agreement to purchase the suit property with the first defendant (first respondent in this case). It was alleged that the latter had represented that he had rights over the property by virtue of agreement to sell executed by the second and third respondents. All the three defendants/respondents denied the suit allegations. The 2013:DHC:8589-DB second and third defendants' position was that they were not parties to the contract, their defence being premised on lack of privity of contract, the suit being time-barred and that the subject matter of the property had ceased to exist since the leasehold rights were cancelled by the Delhi Development Authority (DDA). Learned Single Judge accepted the contentions of the third and fourth defendants and allowed the application for rejection of the plaint.

3. Sb. Dinesh Garg, learned counsel for the appellant argues that the impugned order is erroneous because it virtually proceeds to dismiss the suit even without taking into account the alternative claim of refund of amount paid to the first defendant by the plaintiff. It is also submitted in addition that by virtue of Section 13 of the Specific Relief Act, 1963, the suit was maintainable since it was open for the plaintiff to have the property conveyed in his name in the event his vendor (the first defendant) succeeded against the second and third defendants. It is also contended that the question of cancellation of lease did not amount to an indefensible argument.

4. Learned counsel for the respondents/defendants submitted that the suit claims so far as the refund of money was concerned, was clearly time-barred. Learned counsel for the first defendant, in addition, submitted that the primary claim being one for specific performance, which could not have been enforced, having regard to the circumstances of the case, no useful purpose would have been served in maintaining the proceedings on record.

5. This Court has carefully considered the submissions. The impugned order facially does not disclose any document with respect to alternative option put forward by the plaintiff in terms of Section 20(2) of the Specific Relief Act, 1963, which goes so far as permitting even an amendment in the course of proceedings on behalf of the plaintiff if the main claim for specific performance were not to succeed, to seek damages or compensation in addition to refund of monies. This Court, of course, cannot comment on the substantiality or otherwise of the plea with respect to the applicability of Section 13, since that would really amount to a triable issue. Recollecting that the Court cannot reject the pleadings in part [refer to M's. Raptakos Brett and Co. Ltd. v. Ganesh Property 1998 (7) SCC 184] and further that the issue of limitation would be mixed question of fact and law, having regard to the fact that if the contract for purchase of land itself does not spell-out the time period within which it should be enforcedlperformed, limitation would start from the date when the demand is made and refused. As far as the plea of the second and third defendants/respondents are concerned, the feasibility of continuing them in the proceedings without rejecting the suit in entirety was an option that could have been considered by the learned Single Judge - a step which was not taken as is evident from the reading of the order.

6. Having regard to these, learned counsel for the plaintiff and the first defendant were agreeable for remand of the suit for adjudication on merits after trial. Learned counsel for Defendant Nos. 2 and 3 submitted that the liberty to raise the plea that the suit was not maintainable as against the said parties should be kept open. This Court is of the opinion that having regard to the questions urged, including as to the applicability of Section 13, the plea of second and third defendants would not be justified at this stage; even that question would be a matter of trial.

7. In view of the above discussion, the impugned judgment and order is hereby set-aside. The matter is remitted to learned Single Judge for adjudication on merits after issues. The parties shall be present before the learned Single Judge on 20.01.2014.

S. RAVINDRA BHAT, J