Civil Procedure Code (CPC)

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Chronological details of the case:

  • Agreement for sale dated 12.10.1994 to which plaintiff was a party.
  • The date for performance of the contract was fixed under the agreement as 07.10.1996.
  • After more than three years (after the period of limitation), the plaintiff filed a suit only for the relief of mandatory injunction, which valued at Rs.250 and a court fee of Rs.25 was paid against it.
  • While deciding on the issue of maintainability 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 plaintiff to pay the deficit court fee.
  • This decree was later set aside by the First Appellate Court. The High Court, agreeing with the First Appellate Court judgment held the suit as time barred.
  • 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.

Issue of the case:

  1. Can the case proceed after the period of limitation has expired?
  2. Can by virtue of Section 149 of the Code of Civil Procedure, such payment be considered having the same force and effect as if such fee had been paid in the first instance itself?

What does the judgment says?

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

The manipulative 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, and choosing to pay proper court fee after being confronted with an application for the dismissal of the suit. Clever ploys cannot always pay dividends

Section 149 of Code of Civil Procedure:

“Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance

What is Specific Performance?

Specific performance is a specialized remedy used by courts when no other remedy will adequately compensate the other party.

Section 10 of the Specific Relief Act, 1963, states :

Cases in which specific performance of contract enforceable.

Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced-

(a) when there exists no standard for ascertaining actual damage caused by the non-performance of the act agreed to be done; or

(b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.

Explanation: Unless and until the contrary is proved, the court shall presume-

(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and
(ii) that the breach of a contract to transfer movable property can 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 consists of goods which are not easily obtainable in the market;

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

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17 February 2020    42  Report


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