TMI Blog1998 (5) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... ree brothers and are joint owners of the house at Shimoga. The 1st defendant who was a Professor was working at Delhi (now retired); the 2nd defendant was at Madras and the third defendant was at Bangalore. The defendants 2 and 3 gave powers-of-attorney to the 1st defendant. There were consultations between plaintiff and the 1st defendant which started in 1983 by way telephone calls and letters and 'after the negotiations reached a final stage' the 1st defendant wanted the plaintiff to come to Delhi for finalising the proposals. The plaintiff took along with him, one Mr. R.K. Kalyankar (PW 2) to help him in the negotiations. They took two bank drafts for Rs. 50,000/- and Rs . 10,000/- respectively and reached Delhi in January 1984. On 25.1.1984, at the residence of the 1st defendant, a draft agreement of sale was 'approved' by the 1st defendant with small changes made in his own handwriting and the 1st defendant told the plaintiff 'that he was approved the draft and the contract was concluded . (The photocopy of the agreement was filed and its original was marked as Ex. p3). The agreed consideration was Rs. 5 lakhs and the purchaser agreed to bear the stamps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - apart from other corrections. The 1st defendant did not ask the plaintiff to be ready by June 1984 for reg1stration as alleged by plaintiff. The agreement produced alongwith plaint was only a proposal. Plaintiff was, in the meantime, negotiating for another property at Davangere. Plaintiff was not ready and willing. The plaintiff did not product the letter of PW 2 dated 11.4.84 addressed to 1st defendant. The suit was liable to be dismissed. These were the allegations in the said written statement of the 1st Defendant. Defendants 2 and 3 adopted the written statement of 1st defendant. The trial court after considering the oral and documentary evidence held on issue 1,3 4 that a contract was concluded at Delhi between Plaintiff and defendants on 25.1.1984 for Rs .5 lakhs as per Ex .P3 draft, that the said agreement dated 25.1.84 was not materially altered later and the sale deed was agreed to be executed by 30.6.84. On issue 2, it held that plaintiff was ready and willing and that plaintiff was entitled to specific performance of the agreement dated 25.1.1984 and for permanent injuction against defendants not to alienate the property to others. The defendants 1 to 3 appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 1st defendant at his Delhi residence? (2) Having not agreed in the High Court to amend the plaint and plead that there was a concluded contract at Bangalore on 28.4.84 and having thus refused to seek for a relief for specific performance of an agreement dated 28.4.84, whether the plaintiff could contend that there was an agreement of sale dated 28.4.84 at Bangalore? (3) What are the legal principles applicable to suits for specific performance under section 20 of the Specific Relief Act, 1963 where there is variation between pleadings and evidence in regard to the date or other terms of the contract? To what extent can relief be given under the heading 'general relief' in suits for specific performance under Order 7 Rule 7 CPC? (4) Alternatively, whether, on the plaint as it stands, and the prayer made therein without seeking amendment, the plaintiff can get a decree for specific performance of an agreement dated 28.4.84 said to have been concluded at Bangalore? Point 1: On this point, as to whether there is a concluded agreement at Delhi on 25.1.1984. there is abundant evidence to say that there is no such concluded agreement. This is clear from the suit-no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings have been cited before us to the effect that if parties have led evidence on a point which has not been pleaded, no prejudice will be caused if relief is granted on the basis of what emerges from the evidence. We do not propose to refer to these rulings as the said propositions are not in dispute. (A) Point 3: (a) We shall first refer to certain special principles of law applicable to suits for specific performance in regard to the discretion which is to be exercised under section 20 of the Specific Relief Act, 1963, when there is a conflict between the pleading and the evidence. Section 20 of the Act reads as follows: S .20: Discretion as to decreeing specific performance: (1) The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. (2)-------------------------------- (3)-------------------------------- (4)------------------------------ It is well settled that the circumstances referred to in dub-clauses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erformance, could not be permitted to abandon the case made out in the plaint and to invite the Court to examine whether a completed agreement may or may not be spelt out of the antecedent correspondence. In that connection Sir Asutosh Mookerjee observed: The Court would not in a case of this description permit the plaintiffs to depart from the case made in the plaint as the Court discourages, as a rule, variance between pleading and proof. The test to be applied in such cases is whether if the variance were permitted in favour of the plaintiffs, defendants would be taken by surprise and be prejudiced thereby .........This rule is applied with special strictness in cases of specific performance of contracts. In Hawkins vs. Maltby(1868) 3 Ch.A. 188, one contract was alleged and another was proved, with the result that the bill was dismissed. No doubt where there has been part performance, the Court may struggle with apparently conflicting evidence rather than dismiss the suit. This appears to have been the view adopted by Lord Cottenham in Mundy vs. Jolliffe 5 Myl 8 C167: (1939) 9 LJ ch. 95. In the case before us there is no question of part performance . A.N. Ray (as he then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e concerned with category, Fry says (p. 299) (paras 634 to 638) as follows: (3): In considering the case in which a Variation has arisen between the contract alleged and that proved, it must be borne in mind that the burthen of providing his case rests, of course on the plaintiff, and therefore, if there by any such conflict of evidence as leaves any uncertainty in the mind of the court as to what the terms of the parole contract were its interference will be refused (Lindsay vs. Lynch 2, Sch. Lef. 1; cf Price vs. Salusbury 2 Beav, 446) Fry also refers to a case where one contract has been alleged in the bill, another has been proved by the plaintiffs' one witness and a third contract has been admitted by the two defendants and where initially. Specific performance has been granted a per the contract set up by the answers. Fry says: but Lord Rosslyn considered that in strictness the bill ought to have been dismissed. (Mortimer vs. Orchard, (2 Ves,. Jun, 243; London and Birmingham Rly . Co. vs. Winter: (Cr. Ph. 57). In a more recent case, where one contract was alleged and another proved, the bill was dismissed without prejudice to the filing of another bill (Hawkin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jaque, referred to above. (b) Yet another aspect of the matter is whether in a suit for specific performance the plaintiff can be given relief under the general prayer such other relief as this Hon'ble Court may deem fit to grant in the circumstances of the case , in the light of Order 7 Rule 7 CPC. order 7 Rule 7 CPC reads as follows: Relief to be specifically stated: Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement. Mulla(CPC) Vol.2 (15th Ed.p.1224) says that such relief may always be given to the same extent as if it had been asked for, provided it is not incons1stent with that specifically claimed, and with the case raised in the pleading. (See Cargil vs. Bower [1878 Ch. D.502, 508]; Kidar Lall Seal Another vs. Hari Lall Seal [1952 SCR 179]). It is stated in Corpus Juris Secundum (Vol. 81A, Specific Performance) (Para 189) as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to be ready with the entire amount at the time of executing the sale deed. .....The defendant also told the plaintiff to be ready with the entire sale consideration by about the 3rd week of June 1984 . If, as stated under Point 1, there was no concluded contract at Delhi on 25.1.1984, then the above, averments in the plaint do not show that there was an independent concluded agreement at Bangalore. The plaint proceeds on the basis that the concluded agreement, if any, was the one dated 25.1.1984 at Delhi. The paragraph dealing with cause of action (paragraph 9) also, states thus: When the defendants concluded the contract on 25.1.1984 and also on subsequent dates when the defendants further confirmed the agreement of sale..... Therefore, there is no specific allegation of any fresh agreement of sale dated 28.4.1984 in the plaint. Further, the relief asked for in para 11 is only with regard to the 'concluded' agreement of 25.1.1984 and reads as follows : (a) Specific performance of the agreement of sale concluded between the parties on 25.1.1984 and direct......... (b) Permanent injunction.......... (c) Cost of this suit and such other reliefs as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acceptable. You come to Delhi for agreement, if unable, inform Ex. P5 letter dated 10.4.84 of 1st defendant to plaintiff stated that he has received the letter of PW2 on 6.4.84 and it further states: I agree to make agreement in accordance with talks at Delhi by us. It may be done at Delhi if you come to Delhi......Mainly, if mind satisfied regarding money, it may be done, if it is less or more. As it is said by Kalyankar, we must have due it seems . On the next day 11.4.84, the 3rd defendant writes to PW1 Ex P6 dated 11.4.84 (produced by plaintiff PW1) as follows: I understood from my brother, Dr.C.S.G.K. Setty at Delhi, that he has conveyed to you both by telephone and by letter, that you should meet him at Bangalore during the end of April 1984, when he will be visiting Bangalore for finalising the agreement as he had discussed with you earlier. he writes me that he is awaiting your confirmation Ex. D9 dated 6.4.84 by PW 2 to 1st defendant shows that plaintiff was in a dilemne whether to purchase this property or some other property and that plaintiff and 1st defendant should talk over the matter. This letter would be incons1stent with there being any conclud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icable to 'general relief' because the plaint specifically says that there is a concluded contract on 25.1.1984 at Delhi which is belied by the oral and documentary evidence. However liberally the plaint is construed, all that it says is that the 1st defendant came to Bangalore and asked the plaintiff to be ready. It does not speak of any fresh agreement entered into at Bangalore on 28.4.1984. Nor are we able spell out any such agreement concluded on 28.4.1984. The grant of any general relief on the basis of an agreement of sale dated 28.4.84 - even if proved - will be doing violence to the language in the plaint to the effect that the parties concluded an agreement on 25.1.1984. The High Court on the basis of its findings has held in para 13 as follows: if only the plaintiff was able to prove the agreement as pleaded by him there was no difficulty in granting a decree for specific performance, as the evidence on record does not disclose that the case falls within any of the exceptions mentioned either in Section 16 or Section 20 of the Specific Relief Act. No doubt specific relief is an equitable remedy and (it is the ) discretion is required to be exercised judicially ..... X X X X Extracts X X X X X X X X Extracts X X X X
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