2005 PLP 1144 (CLC)

Birgis Jahan Bajiga Malik v. Muhammad Hassan and others PLD 1964 Dacca 202 and Arjun Singh v. Shahu Maharaj Narain AIR 1950 All. 415 ref. Mehr Mahboob Hussain Arain for Petitioners On 16‑7‑1998 the petitioners filed a suit against the respondent No.1. It was stated in the plaint that the respondent No.1 agreed to sell the suit‑land mentioned therein to the petitioners for a consideration of Rs.7,92,

000. He received a sum of Rs.4,00,000 as earnest and executed an agreement on 3‑3‑1996. According to the terms of the agreement, the land was mortgaged and the respondent No.1 was to get it redeemed and after receiving balance price to execute a sale‑deed in favour of the petitioners by 25‑1‑1997. The needful was not done and a decree for specific performance was prayed for. I am told that a written statement was filed. Issues were framed and evidence of the parties was recorded. Somehow or the other, it was deemed proper to file an application for amendment of the plaint on 22‑9‑2004. Permission was sought to pray for the relief of possession. The application was contested and was dismissed by the learned trial Court on 25‑11‑2004 on the sole ground that it has been filed with a delay. A learned Additional District Judge, Mailsi, faithfully followed suit by dismissing the civil revision on 17‑1‑2005.

2. Learned counsel for the petitioners contends that, in the first instance, there was no need to pray for relief of possession as it is deemed to be included in the relief of specific performance. He relies on the cases of Birgis Jahan Bajiga Malik v. Muhammad Hasan and others PLD 1964 Dacca 202 and Arjun Singh v. Shahu Mahraj Narain AIR 1950 All.

415. Further contention is that merely adding of the said relief in the prayer or in the heading of the plaint cannot at all be said to change the nature and scope of the suit. I have given some thought to the said contention of the learned counsel. To my mind, he is right in contending that it is not at all necessary to make a prayer for possession in a suit for specific performance because it is well‑settled that the relief by way of delivery of possession in a suit for specific performance springs out of the a contract for sale and is incidental to the main relief of the specific performance granted in the suit, even though such a relief may not actually have been asked for in the plaint or incorporated in the decree passed in the suit for specific performance. In the case of Momtazul Karim and others v. Abu Hussain and another 1970 SCMR 816, a suit for specific performance on the basis of an oral agreement to sell was decreed by the learned trial Court. The learned High Court at Dacca dismissed the first, appeal and also passed a decree for possession in addition to the decree for specific performance passed by the' learned trial Court. It was objected before the Honourable Supreme Court of Pakistan that since the actual relief prayed for was for the specific performance of a contract of sale, the High Court could not have granted a decree for possession. The objection was disposed of as follows by the Honourable Supreme Court:‑‑ "This decree for Khas possession in a suit for specific performance of contract of sale is redundant. However, the petitioners cannot be said to have been prejudiced by this decree for Khas possession inasmuch as in execution of the decree for specific performance of the contract, the plaintiff can also get recovery of possession." I, therefore, find that the judgments relied upon by the learned counsel from the Dacca and Allahabad High Courts (both Division Benches) find further support from the said observations of the Honourable Supreme Court.

4. This writ petition accordingly is disposed of with the observation: that notwithstanding the dismissal of the application for amendment to pray for a relief which in any case was redundant, in case the suit of the petitioners is decreed by the learned trial Court, then upon compliance with the conditions laid down by the learned trial Court the petitioners in execution of the said decree shall also be entitled to get the possession of the suit property. With these observations, the writ petition is disposed of. S.A.K./K‑94/L Order accordingly.