M.M. Kumar, J.
1. The order of the trial Court dated 21.12.205 dismissing an application filed by the defendant-petitioner under Order VII Rule II of the Code of Civil Procedure, 1908 (for brevity 'the Code') has been made subject matter of challenge in this petition filed under Article 227 of the Constitution. The trial Court has held that the suit of the plaintiff-respondents for declaration on the basis of agreement to sell executed between the plaintiff-respondent Jai Parkash and his brother, defendant-respondent No. 2 Narender Kumar on the one side being proposed vendees and defendant-petitioner on the other side being proposed vendors is maintainable.
2. Brief facts of the case are that the plaintiff-respondent Jai Parkash and Narender Kumar are both brothers who have entered into an agreement to sell with defendant-petitioner. Defendant-respondent No. 3 and 4 are their brother in law (Jija) and sister respectively. The plaintiff-respondent Jai Parkash filed a suit for declaration with consequential relief of mandatory injunction in his favour. He alleged that he along with his brother Narender Kumar had entered into an agreement to sale with defendant-petitioner m respect of a plot. On the request made by his brother Narender Kumar, defendant-respondent No. 2 the defendant-petitioner is alleged to have illegally transferred the plot in favour of their sister and brother-in-law without his consent. He has further prayed for mandatory injunction for cancellation of sale deed and issuance of directions to the defendant-petitioner to execute the sale deed in his favour (Jai Parkash) plaintiff-respondent and his brother, defendant-respondent No. 2. A further prayer to deliver possession of the suit land has also been made. The defendant-petitioner filed an application under Order VII Rule II of the Code seeking rejection of plaint by arguing that the suit was not maintainable on account of the provisions of Section 41(h) of the Specific Relief Act, 1963 and the only remedy available to the plaintiff-respondent was to file a suit for possession by way of specific performance. The application was contested and the same has been dismissed by the order impugned in this petition. The operative part of the order dated 21.12.2005 reads as under:
After careful perusal of case file it has been revealed that plaintiff and defendant No. 2 were running a partnership business under the name and style of M/s Babu Lal Jai Parkash, 3977 Naya Bazar, Delhi. It is further clarified that plaintiff and defendant No. 2 booked plot measuring 250 Sq. Yards bearing No.E-75 in Suncity Gurgaon with defendant No. 1 for a total consideration of Rs. 13,48,750/-. As per the case of the plaintiff the plot is stated to have been wrongly and illegally transferred on the request of defendant No. 2 alone in favour of defendant Nos. 3 and 4. The plea taken by counsel for defendant/applicant that the suit of the plaintiff is totally barred under the provisions of Section 41(h) of the Specific Relief Act as the efficacious remedy is only a suit for possession by way of specific performance of agreement cannot be accepted at this stage, because from the documents placed on Court file it is found that plaintiff has paid a sum of Rs. 10,97,495.63 to defendant No. 1 against the sale consideration of suit property and defendant No. 1 has transferred the half share of the plaintiff in favour of defendant Nos. 3 and 4 on the request of defendant No. 2, therefore, the plaintiff has rightly sought the remedy by way of filing of the present suit. The citations placed on Court file by learned Counsel for plaintiff i.e. Saleem Bhai and Ors. v. State of Maharashtra and Ors. 2003 S.A.R. (Civil) 86, Daljinder Singh v. Amarjit Singh Mandu and Ors. (2004-1) 136 P.L.R. 276 (P&H;) are not applicable to the facts and circumstances of the present case. In the above noted cases a direction was given to the defendant to file written statement without deciding the application under Order 7 Rule 11, which was ultimately found a procedural irregularity, touching the exercise of jurisdiction by the trial Court. In the present case, the suit filed by the plaintiff in the present form is very much maintainable, therefore, the present application filed by the defendant/applicant being bereft of any merit deserves dismissal and is hereby dismissed.
3. Mr. Sanjay Vij, learned Counsel for the petitioner has argued that once the alternative remedy of filing a suit for possession by way of specific performance is available, which is efficacious and proper remedy, then the suit for declaration with consequential relief of mandatory injunction could not be filed. In support of his submission, learned Counsel has placed reliance on a judgment of the Supreme Court in the case of N.V. Srignigasa Murthy and Ors. v. Mariyamma and Ors. : AIR2005SC2897 .
4. It is true that in case where the agreement to sell in respect of immovable property is breached then ordinarily a suit for specific performance of the agreement to sell is required to be filed and that would be efficacious and proper remedy. However, in the present case when the suit property has already been transferred on the directions issued by a proposed vendee co-party to the agreement to sell in favour of his close relations then a simple suit for specific performance of contract would not be proper remedy. Firstly, the co-party to the agreement to sell i.e. defendant-respondent No. 2 Narender Kumar has to be impleaded as defendant because he has ignored the plaintiff-respondent Jai Parkash and without his consent has directed the defendant-petitioner to transfer the suit land to a third party. Defendant-petitioner could not have acted on the directions of Narender Kumar alone. In a suit for specific performance no relief could have been claimed against a co-party to the agreement to sell. Had the plaintiff-respondent filed a suit for specific performance for agreement to sell then both the brothers who were parties to the agreement to sell were required to be the plaintiffs. The suit could not be decreed in favour of the plaintiff-respondent alone as half share in favour of the plaintiff-appellant would result into complete novation of the agreement to sell. It is well settled that the Courts cannot re-write a contract in preference to the one entered into between the parties. The facts of the present case are so peculiar that pure and simple remedy of filing a suit for specific performance may not be a proper and efficacious remedy. Therefore, I do not find any legal infirmity in the findings recorded by the trial Court.
5. The judgment of the Supreme Court in the case of N.V. Srinivasa Murthy does not have any relevance to the facts of the present case and therefore, I do not propose to deal with the same in details.
In view of the above, this petition fails and the same is dismissed.