if possession not prayed in suit for specific performance?

2020 C L C 1974

[Sindh]

Before Nazar Akbar, J

MUHAMMAD SAEED AKHTAR and others----Appellants

Versus

TAHA MOBEEN QURESHI through Attorney andothers----Respondents

IInd Appeals Nos.65 and 97 of 2012, decided on 10thJune, 2020.

Specific Relief Act (I of 1877)---

----Ss.12 & 19---Civil Procedure Code (V of1908), O. XXXVIII, R.5---Suit for specific performance of agreement tosell---Transfer of suit property to the subsequent purchaser---Breach ofcontract---Compensation, award of---Attachment of property beforejudgment---Scope---Suit was decreed with the direction to the executant ofagreement to sell to execute conveyance deed in favour of plaintiff but norelief of possession was extended---Validity---Plaintiff had paid all theconsideration amount to the defendant/builder of housing society---Defendanthad sold suit land in favour of subsequent purchaser and he was bound to refundamount so realized by him to the plaintiff---Builder had failed to completeconstruction by due date and even he had not returned consideration amountreceived by him to the plaintiff---Subsequent purchaser had possession of suitproperty and its sale deed---Execution of conveyance deed through Court infavour of plaintiff would render sale deed in favour of defendants asineffective---Case of plaintiff for specific performance against the builderhad been made out but it had become a case of hardship for the subsequentpurchaser---Relief of specific performance, even if contract was enforceable,was discretionary and same could be withheld by the Court---When Court hadconcluded that grant of relief of specific performance had been made out but itwould be a case of hardship to other side or unfair and inequitable to anythird party who was not at fault then it should compensate theplaintiff---Builder had breached contract and only execution of title documentwas not specific performance of a contract of sale of immovable property whenplaintiff was not in possession of suit premises---Execution of title documenthad to be coupled with delivery of possession of suit property to theplaintiff---Court could not grant decree of possession of suit property to theplaintiff owing to the presence of bona fide purchaser of suitpremises---Plaintiff should have been granted relief of specific performancewith additional compensation, in circumstances---Court in suit for specificpeformance could grant two decrees of compensation combined in one judgment ina suit for specific performance---Order of specific performance might besubstituted with compensation for it with additional compensation for breach ofcontract---High Court observed that court, in the present case, should havepassed an adequate decree of compensation both as substitution of specificperformance and additional compensation for breach of contract---Decree ofspecific performance of an agreement to sell through execution of titledocument against the builder in favour of plaintiff was in the field with noresult and there was likelihood that builder would avoid the said decree---HighCourt passed order for attachment of movable and immovable property of builderwho had received consideration amount from the plaintiff but had not returnedthe same---Plaintiff was entitled for adequate compensation keeping in view escalation in valuation of suit premises and value of currency which had gonedown due to inflation in the country---Property of builder would remainattached till the judgment was executable---Second appeal was allowed accordingly.
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