1992 PLP 1069 (CLC)

(c) Specific Relief Act (I of 1877)‑‑‑ ‑‑‑‑S. 22‑‑‑Specific performance of contract‑‑‑Specific performance, being a discretionary relief, same could be refused in given circumstances, one of which could be availability of alternative relief. Salima Nasiruddin for Plaintiff. M. Farooq Hashim for Defendants. I have heard the learned counsel on this application under Order 7. rule 11, C.P.C. Learned counsel for the plaintiff is right when she says that the pleas raised in support of the application under Order 7, rule 11, C.P.C. are ambiguous in nature. She contends that such should not be considered. However, in the interest of justice, each one of these pleas have been examined with the assistance of the learned counsel for the parties. The first plea is that of the bar of limitation. The plaintiff relies on two successive agreements, one of which as per written statement of the defendants is not admitted. On this plea itself, the question of limitation cannot be considered unless a fnding is arrived at with regard to the second purported agreement. At any event, the question whether the matter falls within the first part of the third column to Article 113 in the First Schedule to the Limitation Act or in the latter such part is also not free from doubt, moreso when it is settled law that in respect of agreements of sale, touching immovable property time is not of the essence of contract even though mentioned in the agreement itself unless written notice is addressed by one party to the other and time is reasonably fixed. The question, therefore, requires evidence, as a precondition. The next question raised in this application pertains to payment of court‑fees relevant to the valuation of the injunctions claimed in the suit. In this context learned counsel for the defendants appears to be right but then, even so, acceptance of such objection as well cannot result in the rejection of the plaint. The plaintiff is, therefore, directed to value the reliefs of injunction according to the requirements of the Court Fees Act. For such purpose, let amended plaint with due valuation and additional court‑fees be submitted with advance copy to the learned counsel for the defendants within four weeks. The .third question raised pertains to the suit being barred under the provisions of the Specific, Relief Act. As before, no particulars arc provided. However, learned counsel for the defendants says that because the agreement inter parties provides for an alternative of damages, relief for specific performance is automatically barred. No case on the subject has been cited. However, specific performance is a discretionary relief and may be refused in .given circumstances, one of which can be the availability of an alternative relief. This question is also one, which can be examined only in the context of the over‑all controversy in the suit after evidence is recorded‑ In view of the foregoing, I see no merit in this application and dismiss it. However, such questions, as be relevant, would remain to be considered at the time, when the matter proceeds on merits. No observation made here, being only tentative, shall then bind the parties.

2. Deferred for the present. H.B.T./B‑213/K Application dismissed.