K.V.K. Sayyid Hashim v. P.P. Muhammed Yasin

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 9[TH] DAY OF AUGUST 2023 / 18TH SRAVANA, 1945** **R.S.A. NO. 259 OF 2021** **AGAINST THE JUDGMENT AND DECREE DATED 04.01.2021 IN A.S.NO.30 OF 2020 OF THE ADDITIONAL DISTRICT COURT-II, MANJERI CONFIRMING THE JUDGMENT AND DECREE DATED 28.02.2020 IN O.S.NO.334 OF 2016 OF THE MUNSIFF'S COURT, MANJERI** ## **APPELLANT/APPELLANT/DEFENDANT:** **K.V.K.SAYYID HASHIM AGED 44 YEARS, S/O. SAYYID SALIH POOKOYA THANGAL, R3 C. SABAN GOLDEN VILLAGE, PONMALA VILLAGE, VALIYAPARAMBA, PUTHUR P.O, KOTTAKKAL VIA, MALAPPURAM DISTRICT, PIN-676 507. BY ADVS. K.P.SREEKUMAR SRI.P.GOPAL** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **P.P.MUHAMED YASIN, AGED 69 YEARS, S/O. MUHAMMED KUTTY, MOULANA HOUSE, MANGALAM AMSOM, KOOTAYI DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN 676 561. BY ADVS. SRI.T.KRISHNAN UNNI (SR) VINOD RAVINDRANATH SMT.MEENA.A. SRI.M.DEVESH SMT.M.R.MINI SRI.K.C.KIRAN SRI.ASHWIN SATHYANATH SHRI.ANISH ANTONY ANATHAZHATH SHRI.THAREEQ ANVER** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 05.07.2023, THE COURT ON 09.08.2023 DELIVERED THE FOLLOWING:** 2 R.S.A.No.259 of 2021 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------R.S.A.No. 259 of 2021 ----------------------------------------------------------Dated this the 9[th] day of August, 2023** ## **JUDGMENT** The appellant is the defendant in O.S.No.334 of 2016 before the Munsiff Court, Manjeri. The respondent filed the suit seeking a decree of mandatory injunction which was decreed. An appeal was preferred by the appellant before the Additional District Judge-II, Manjeri, but the appeal failed. Feeling aggrieved thereby this second appeal has been preferred. 2. When this matter came up for admission on 08.03.2021, this Court after hearing the learned counsel appearing for the appellant and the learned Senior Counsel appearing for the respondent referred the matter for mediation. An interim order directing both sides to maintain status quo till 30.03.2021 was granted. Later the order was extended from time to time. The attempt for a settlement failed. Thereafter, on 05.08.2021 this Court admitted the 3 R.S.A.No.259 of 2021 appeal. On the said date, I.A.Nos.1 and 3 of 2021 were disposed of after a detailed order. The said interlocutory order was challenged by the respondents herein before the Apex Court by filing S.L.P.(C) No.15055 of 2021. The said S.L.P was disposed of by the Apex Court as per the order dated 01.10.2021 by ordering as follows: “Mr.K.V.Vishwanathan, learned senior counsel appearing for the respondent, states that the entire amount in terms of the Court order stands deposited and some teachers have also been appointed. The present Special Leave Petition is directed against an interim order and that the fact that the order is more to settle equities between the parties, therefore, we do not wish to interfere in proceedings under Article 136 of the Constitution of India, except to say that all appointments, if any made, shall be subject to the decision of the second appeal by the High Court. In view of above, the Special Leave Petition is disposed of. Pending interlocutory application(s), if any, is/are disposed of.” ## 3. Heard the learned counsel appearing for the appellant and the learned Senior Counsel appearing on instructions for the respondents. 4 R.S.A.No.259 of 2021 4. The appellant is the owner of 2.981 acres of land and three aided schools situated thereon. He, as per Ext.A1 agreement dated 25.09.2013 agreed to sell the property and the school to the original respondent for a sale consideration of Rs.1,90,00,000/-(Rupees One crore ninety lakh only). At the time of the agreement, Rs.55,00,000/-(Rupees Fifty Five lakh) was paid as advance sale consideration. There were subsequent payments to the appellant by the respondent towards sale consideration. Terms of the agreement envisage submission before the Director of Public Instructions a joint application for the transfer of the school and its management. The respondents alleging that in spite of notice, the appellant failed to turn up for submitting a joint application to the Director of Public Instructions, filed the suit seeking a decree of mandatory injunction. 5. The appellant filed a written statement. He admitted the execution of Ext.A1 agreement. He also admitted receipt of Rs.1,01,50,000/- (Rupees One crore one lakh fifty thousand only), which constitutes the payments at 5 ## R.S.A.No.259 of 2021 the time of execution of Ext.A1 and on a few later occasions, from the respondent. Again an amount of Rs.25,00,000/- was paid by the respondent to the appellant. He contended that an amount of Rs.63,50,000/- is still due towards the balance sale consideration and on making payment of that sum, he would join in submitting the joint application and execute the sale deed. The further contentions of the appellant were that such a decree of mandatory injunction is not liable to be granted and the Director of Public Instructions is a necessary party. 6. The learned Munsiff held trial on the issues, namely, whether the plaintiff was entitled to get a mandatory injunction as prayed and what should be the order as to costs. No oral evidence was let in by either side. Exts.A1 and A2 on the side of the respondent and B1 and B2 on the side of the appellant were received in evidence. The learned Munsiff holding that the agreement in Ext.A1 being that after six months of getting permission from the Director of Public Instructions alone the respondent is obliged to pay the balance sale consideration and the only contention of the appellant being non-payment of the 6 R.S.A.No.259 of 2021 balance sale consideration of Rs.63,50,000/-, a decree of mandatory injunction was to be granted. 7. Before the lower appellate court, several fresh contentions were raised. It was contended that a suit for a mandatory injunction should not have been entertained since the execution of the sale deed was a condition precedent for the transfer of the ownership and management of the school. It was contended that Section 6 of the Kerala Education Act, 1958 interdicts such a transfer of ownership and going by the provisions of Rule 5A of the Kerala Education Rules, 1959 the respondent should not have insisted on submitting a joint application before execution of the sale deed. The first appellate court considered the said questions of law as well as the factual aspects and held that the decree of the trial Court did not suffer from any infirmity. The learned Appellate Judge placed reliance in **Roopa A.K v. State of Kerala and others [2014 (1) KLT 483]** and held that when a running school as such; the landed properties together with the right of management is transferred, Section 6 of the Education Act 7 ## R.S.A.No.259 of 2021 does not have application. The learned Appellate Judge by acting upon the terms in the agreement that the obligation of the respondent to make payment of the balance sale consideration arises only after obtaining permission from the Director of Public Instructions for the transfer in his favour of the management of the school held that a decree of mandatory injunction as claimed was liable to be granted. 8. The substantial questions of law on which this appeal was admitted are essentially whether a mandatory injunction claimed by the respondent is one disguising a decree for specific performance of the contract and if at all, a suit for mandatory injunction is maintainable, could there be such a decree in the suit before payment of the balance sale consideration. Another question mooted is that would not the failure on the part of the appellant to join for submitting an application before the Director of Public Instructions amount to anticipatory breach necessitating seeking a decree for specific performance. If the answer to the last question is positive, claim for a decree of mandatory injunction may not survive. 8 R.S.A.No.259 of 2021 9. The learned counsel appearing for the appellant raised a plea of non-joinder of the Director of Public Instructions as a party to the suit and contention with reference to Section 6 of the Kerala Education Act. Section 6 prohibits sale, mortgage, lease, pledge, charge or transfer of possession of any property of an aided school except with the permission of the authorised officer. Here, the transfer contemplated by Ext.A1 is not merely the property of the school, but the school as such; the land and the management together. This question was considered in detail by a Division Bench of this Court in **Roopa A.K [2014 (1) KLT 483]** . 10. In fact, a learned Single Judge in **Koyyode Madrassa U.P School v. Director of Public Instructions [2011 (1) KLT 150]** took the view that previous permission of the Director is not required before making the transfer, if the transfer is of a running school with its management. Previous permission of the Director can be granted even after the transfer of ownership. In appeal, a Division Bench held that view to be incorrect and the Apex Court did not entertain 9 R.S.A.No.259 of 2021 a Special Leave Petition filed in that matter. Taking that into account the Division Bench in **Roopa A.K [2014(1) KLT 483]** held that prior permission is required for the transfer. It was held that: “Even though we agree with the contention that prior permission is required before transfer, we have not been told as to how the transfer has adversely affected the interest of anyone concerned or of the Government. Obviously, no qualification is prescribed under the KER for the manager of the school. However, if transfer of management affects the student community or the teachers or staff, certainly it is for the D.P.I. to decline transfer and take appropriate steps permissible under the Act. In this case the State or its agencies have not told us as to how the second respondent is not eligible to manage the school or whether he has any disqualification to the knowledge of the appellant. All what is said is that the approval could be considered for transfer by the D.P.I. after the first respondent effected the transfer in favour of the second respondent. We do not think anything illegal in the judgment because, since transfer has taken place three years back and the school continues to be an aided school, it is for the D.P.I. to consider whether transfer could be approved after the first respondent physically transferred the 10 R.S.A.No.259 of 2021 management of the school. However, if does not approve the transfer for valid reasons, it is for him to take appropriate action against the past or present management or other remedial measures provided under the KER.” (Underline supplied) 11. After extracting the said observation, the Division Bench In **Roopa A.K [2014 (1) KLT 483]** held that Section 6 of the Education Act does not interdict if the transfer is of a school as such; the ownership and the management together. 13. The learned counsel appearing for the appellant by placing reliance on **Atma Ram v. Charanjit Singh (AIR 2020 SC 3413)** submitted that in the nature of the agreement in Ext.A1, the respondent should have claimed a decree for specific performance. In the said case, the dispute was with respect to an agreement for sale of an immovable property. The buyer brought the suit claiming a decree of mandatory injunction directing the seller to receive the balance sale consideration and execute a document of transfer. The seller raised the question of maintainability of the suit for mandatory injunction instead of specific performance. The 11 R.S.A.No.259 of 2021 trial Court, however, allowed the buyer to pay the court fees required to be paid in a suit for specific performance and proceeded to grant a decree. The question before the Apex Court was when a decree of specific performance was the appropriate relief, could the suit couching it as one for a mandatory injunction be entertained by permitting the buyer to pay the deficit court fees. It was contended based on Section 149 of the Code of Civil Procedure that once the court fees is allowed to be paid, it will relate back to the date of institution of the suit and hence the suit would be maintainable. It was also contended that the question of limitation should be reckoned with in such a case as on the date of institution of the suit. The Apex Court did not accept the said contentions. It was held that even assuming that an amendment was there to include a relief of specific performance with supporting averments, the period of limitation could be reckoned with reference to the date of the amendment and the amendment does not relate back to the date of institution of the suit. In that case, the suit was found 12 R.S.A.No.259 of 2021 to be filed beyond the period of three years from the date of agreement and hence the suit, at any rate, was barred by the law of limitation. The facts of the said case have no similarity to the facts of this case. The questions involved herein are also different. Therefore the said decision does not have application to this case. 12. The learned Senior Counsel appearing for the respondent would submit that the conditions in Ext.A1 agreement are devised in such a way that the question of specific performance does not arise so long as permission for the transfer of the management is accorded by the Director of Public Instructions. The specific stipulation in Ext.A1 in paragraph No.5 is that a joint application has to be submitted and after six months of according permission to transfer the school management by the Director of Public Instructions, the respondent has to make payment of the balance sale consideration. Since the execution of a sale deed is envisaged only at that stage, the cause of action for instituting a suit for specific performance is quite premature. The learned Senior 13 R.S.A.No.259 of 2021 Counsel highlighted the said premises to justify the decree of mandatory injunction granted by the courts below. 13. The procedure for change of management together with ownership of a school is regulated by Rule 5A in Chapter III of the Kerala Education Rules. It reads; “5A. Change of management involving change of ownership.- (1) Notwithstanding anything contained in these rules, no change of Management of any aided school involving change of ownership shall be effected except with the previous permission of the Director. The Director may grant such permission unless the grant of such permission will, in his opinion, adversely affect the working of the institution and the interests of the staff and the person to whom the Management is transferred. (2) Any person aggrieved by an order under sub-rule (1) may, within 30 days from the date of the receipt of the order, prefer an appeal to the Government. (3) In the case of change of management of a school involving change of ownership the new Manager of a corporate or an individual Educational Agency, shall be bound to absorb any member who is a claimant under rule 51 A of Chapter XIV A or is eligible for protection belonging to teaching and non-teaching staff of any school of the transferor manager, against the vacancies that may arise in the school.” 14 R.S.A.No.259 of 2021 14. As pointed out above, execution of Ext.A1, payment towards advance sale consideration of Rs.1,26,50,000/- (Rupees one crore, twenty six lakhs and fifty thousand only) and that the balance sale consideration is Rs.63,50,000/- are admitted facts. The appellant does not defy or refuse to perform the contract contained in Ext.A1. His contention is only that respondent is obliged to pay the entire balance sale consideration of Rs.63,50,000/(Rupees Sixty three lakhs fifty thousand only) before submission of a joint application for change of management and ownership. The question immediately arises is whether the law contemplates that the transfer of ownership of the school shall precede the permission of the Director of Public Instructions for the change of management of the school. 15. Of course, going by the stipulations in Ext.A1, the appellant and the respondent should submit a joint application for change of management before the Director of Public Instructions. After obtaining sanction alone, arises the 15 ## R.S.A.No.259 of 2021 obligation on the part of the respondent to make payment of the balance sale consideration and to take the sale deed. A period of six months is fixed for such performance also. The learned counsel appearing for the appellant would submit that since the transfer of ownership shall precede the change of management, and the suit without including a relief of specific performance finally forecloses the right of the respondent to claim such a relief. 16. The Apex Court in **Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private Limited** **[(2013) 1 SCC 625]** held that where a plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such reliefs, the plaintiff is precluded from bringing a subsequent suit to claim the relief earlier omitted except in a situation where leave of the Court had been obtained. The learned Counsel appearing for the appellant placed reliance on that principle of law to fortify his contention the the present suit without including a relief of specific performance is not maintainable. 16 R.S.A.No.259 of 2021 ## 17. In **Virgo Industries (Eng.) Private Limited** ## **[(2013) 1 SCC 625]** the Apex Court further held as follows: “A suit claiming a relief to which the plaintiff may become entitled at a subsequent point of time, though may be termed as premature, yet, cannot per se be dismissed to be presented on a future date. There is no universal rule to the above effect inasmuch as 'the question of a suit being premature does not go to the root of the jurisdiction of the Court' as held by this Court in **Vithalbhai (P) Ltd. v. Union Bank of India [(2005) 4 SCC 315]** . In the aforesaid case this Court has taken the view that whether a premature suit is required to be entertained or not is a question of discretion and unless 'there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event', the Court must weigh and balance the several competing factors that are required to be considered including the question as to whether any useful purpose would be served by dismissing the suit as premature as the same would entitle the plaintiff to file a fresh suit on a subsequent date. We may usefully add in this connection that there is no provision in the Specific Relief Act, 1963 requiring a plaintiff claiming the relief of specific performance to wait for expiry of the due date for performance of the agreement in a situation where the defendant may have made his intentions clear by his overt acts.” 17 R.S.A.No.259 of 2021 18. In view of the said principle it may be said that even if the suit is premature that may not absolve the plaintiff from adding the relief ought to have been sought for, lest the bar under Order II, Rule 2 of the Code would be attracted. But, in this case, the cause of action to ask for a sale deed would arise only after getting permission from the Director of Public Instruction. Therefore, applying the said principle also it cannot be said that the respondent should have asked for a decree directing execution of the sale deed also in this suit. The next question arises is, whether the conditions agreed to between the parties in Ext.A1 that the sale deed shall be executed after getting permission from the Director of Public Instruction only is against the provisions of law, namely, Rule 5A in Chapter III of the Kerala Education Rules. 19. The Division Bench in **Roopa A.K [2014 (1) KLT 483]** held that the provisions of Rule 5A in Chapter III of the Kerala Education Rules prohibits change of management involving a change of ownership of an aided school unless previous permission of the Director of Public Instructions is 18 R.S.A.No.259 of 2021 obtained, The Rule further insists that such permission may be granted unless the grant of such permission adversely affects the working of the institution and the interest of the staff and the transferee. It follows that the Director of Public Instructions should be satisfied that permission, if granted, would not adversely affect the working of the institution and the interest of the staff and the transferee. Obviously, such satisfaction should be arrived at on an objective consideration. 20. Going by the principle laid down in **Roopa A.K [2014 (1) KLT 483]** it is not mandatory that the sanction of the Director of Public Prosecution shall precede the permission by the Director of Public Instructions to change the management. Even if the ownership is transferred before the change of management, that does not interdict the provisions of Rule 5A in Chapter III of the Kerala Education Rules. When the law says so, the agreement between the parties in Ext A1 cannot have dominance over the said stipulations of the law. Further, a decision on the change of management of the school is solely in the province of the Director of Public 19 ## R.S.A.No.259 of 2021 Instruction. He is obliged to take a decision in that matter after considering all the factors that might affect working of the institution and the interest of the staff and the person to whom the management is proposed to be transferred. The occasion for such consideration would arise only when an application for change of management is submitted in compliance of Rule 5A in Chapter III of the Kerala Education Rules. Taking all such matters into account, I am of the view that the Director of Public Instructions while considering the application for transfer of the managership shall decide whether change of ownership of the school shall be completed before grant permission for the change of the management. Viewed so, the cause of action for asking a decree for execution of the sale deed in terms of Ext.A1 agreement has not arisen. It follows that the decree of mandatory injunction granted by the courts below cannot be said to be incorrect. 21. It is seen from paragraph No.4 in the plaint that the change of management of the school from Smt.Nafeesu to the respondent was ordered by the Director of Public 20 R.S.A.No.259 of 2021 Instructions on 25.05.2016. Whereas in paragraph No.2 of Ext.A1, it is recited that the sale deed in respect of the school was executed by Smt.Nafeesu in favour of the respondent in 2013. It would show that, practically, nothing prevents the transfer of ownership of the school before granting permission by the Director of Public Instructions to change of management. 22. A decree of mandatory injunction is an equitable remedy. While granting such a remedy the interest of the other side shall also be protected. It is more so when such other party does not dispute the agreement, receipt of advance sale consideration and also does not defy to execute the sale deed, subject only to the payment of the balance sale consideration. The decree granted by the trial Court which stands affirmed by the Lower Appellate Court, therefore, requires modification to the effect that the respondent shall deposit the balance sale consideration of Rs.63,50,000/before the Munsiff’s Court, Manjeri and once such deposit is made, the appellant within one month shall sign and handover 21 R.S.A.No.259 of 2021 all necessary papers for submission of a joint application for change of management of the school in question. 23. The second Appeal is disposed of accordingly. The suit stands decreed as indicated above. The parties shall work out their remedies flowing from this decree by approaching the Munsiff's Court, Manjeri and seek performance of the remaining part of the contract, if required, by approaching the appropriate court at appropriate time. Sd/- ## **P.G. AJITHKUMAR, JUDGE** pv/dkr