Ram Ratan Singh Vs. District Judge and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 168; [s.b. sinha & h.s. bedi, jj ] determination of compensation meaning of income of victim held, the term income has different connotations for different purposes. a court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms. section 168 uses the word just compensation which, in our opinion, should be assigned a broad meaning. it cannot be lost sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard working. different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family if some facilities are being provided whereby the entire family stands to benefit, the same, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. the amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. from the said amount of income, the statutory amount of tax payable thereupon must be deducted. - there may be circumstances in which a relief for possession cannot be effectively granted to the decree-holder without specifically claiming relief for possession, viz.s.u. khan, j.1. at the time of hearing of this petition no one appeared on behalf of contesting respondent no. 3. surajpal singh, hence only the arguments of learned counsel for the petitioner were heard. respondent no. 3 filed a suit for specific performance of agreement for sale against the petitioner in the form of o. s. no. 467 of 1983. the suit was decreed by 7th additional munsif, shahjahanpur through judgment and decree dated 12.5.1985 copy of which has not been annexed. however, in para 2 of the writ petition it has been mentioned that the suit was only for specific performance of contract with respect to 1/4 and 1/2 share of the petitioner in agricultural plot nos. 186 and 187. appeal against the judgment and decree was also dismissed on 29.7.1986. (civil appeal no. 27 of 1986). thereafter on 31.3.1987 plaintiff respondent no. 3 filed an application for execution of decree before munsif shahjahanpur which was registered as execution case no. 34 of 1987. in the said execution objections under section 47, c.p.c. were filed by the petitioner which were rejected on 14.2.1990. against the said order petitioner filed civil revision no. 43 of 1999. the district judge shahjahanpur through judgment and order dated 12.3.1991 dismissed the revision hence this writ petition.2. the first objection was that decree had been passed by 7th additional munsif hence execution before the principal munsif was not maintainable. in this regard both the courts below held that the court of 7th additional munsif had subsequently been abolished hence application before principal munsif was maintainable. the courts below rightly held that in view of section 37(b), c.p.c. court of munsif shahjahanpur had jurisdiction to execute the decree. according to the said clause 'where the court of first instance has ceased to exist or to have jurisdiction to execute it the court which if the suit wherein the decree was passed was instituted at the time of making the application for execution of the decree would have jurisdiction to try such suit.3. the second objection was regarding section 168a of u.p.z.a.l.r. act as it stood at the relevant time. the said section prohibited transfer of fragment. in this regard both the courts below rightly held that as in the plots in question the defendant petitioner had agreed to sell his entire share, hence transaction was not hit by the said section.4. third objection was regarding possession. it was contended that neither in the plaint possession was sought for nor in the decree it was granted, hence through execution possession could not be claimed. in this regard both the courts below particularly the revisional court held that in view of section 22 of specific relief act it was not necessary to ask for the possession except in appropriate case. it was further observed that right to claim possession exists only after suit for specific performance is decreed and the sale deed is executed. taking this view of the matter the revisional court held as follows:in the circumstances, the fact that the relief of possession was not claimed in the suit does not bar the executing court from granting possession and the decree holder could claim possession after the execution of the sale deed in the executing court.5. i do not agree with this observation. under section 22 of specific relief act, it is provided that in a suit for specific performance relief for possession can be granted. however, it is further provided that it cannot be granted unless claimed (section 22 (2)). however, it has further been provided that such a relief can be claimed at any stage of the proceedings by permitting the plaintiff to amend the plaint. in ex-servicemen enterprises v. sumey singh air 1976 delhi 56. it has been held that relief of possession may be permitted to be added through amendment in the plaint even at the execution stage. the said authority has fully been approved by the supreme court in babu lal v. hazari lal kishori lal : air 1982 sc 818. however, in the said authority of the supreme court it has been held that if the possession is with the defendants then it may not be necessary to ask for possession. it has further been held that the words in an appropriate case used in section 22 of specific relief act refer to the situation where possession is with the third party or the suit has been decreed only in respect of share of a co-sharer. para 14 of the said judgment is quoted below:there may be circumstances in which a relief for possession cannot be effectively granted to the decree-holder without specifically claiming relief for possession, viz., where the property agreed to be conveyed is jointly held by the defendant with other persons. in such a case the plaintiff in order to obtain complete and effective relief must claim partition of the property and possession over the share of the defendant. it is in such cases that a relief for possession must be specifically pleaded.para 23 of the said judgment is also quoted below:there has been a protracted litigation and it has dragged on practically for about 13 years and it will be really a travesty of justice to ask the decree-holders to file a separate suit for possession. the objection of the petitioner is hyper-technical. the execution court has every jurisdiction to allow the amendment. the only difficulty is that instead of granting a relief of possession the high court should have allowed an amendment in the plaint. the mere omission of the high court to allow an amendment in the plaint is not so fatal as to deprive the decree-holders of the benefits of the decree when section 55 of t. p. act authorises the transferee to get possession in pursuance of a sale deed.6. the last objection before the courts below was regarding non-compliance of the direction to pay the balance sale consideration of rs. 500 by the plaintiff decree holder to the petitioner defendant judgment-debtor. it appears that rs. 500 were deposited through tender on 31.3.1987 or immediately thereafter on passing of the tender on the said date.7. the terms of the decree were that defendant after receiving rs. 500 should execute the sale deed and get it registered within two months from the date of decree failing which plaintiff was permitted to get the sale deed executed by the court. it was stated in the execution application, that plaintiff orally requested the defendant to execute the sale deed after taking rs. 500 but he refused.8. under section 28 of specific relief act it is provided that if the plaintiff does not within the period allowed by the decree or such further period as the court may allow pay the balance sale consideration or other sum which the court has ordered him to pay, the defendant may apply in the same suit in which the decree is passed to have the contract rescinded.9. firstly, it has to be decided as to whether under the decree it was mandatory or not to deposit rs. 500 within two months. secondly, defendant petitioner could apply for rescinding the agreement under the aforesaid section. instead of it he merely raised objections under section 47, c.p.c. in that regard.10. accordingly, writ petition is allowed and the impugned orders are set aside. matter is remanded to the trial court/executing court, i.e., munsif shahjahanpur to decide the question of applicability of section 28. petitioner is entitled to file application for rescinding the contract in terms of section 28 of specific relief act. similarly, respondent no. 3 is also entitled to file application for amendment of the plaint seeking relief of possession or such other relief which may be warranted under section 22 of specific relief act.11. as no one appeared on behalf of respondent no. 3 at the time of hearing of this writ petition hence the court below before proceeding further shall issue notice to respondent no. 3. the petitioner is directed to file certified copy of this judgment before courts below within 3 months failing which this judgment shall automatically stand vacated and writ petition shall be treated to have been dismissed.writ petition is accordingly allowed in part as above.