TMI Blog1951 (2) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... ed it with notice of the contract. The plaintiff's case, in substance, iS that in Septem- ber, 1941, the defendants second party, who owned a house at Gaya, entered into negotiations for sale of the same, with one Jadu Ram, and the title deeds of the property were actually handed over to the latter. These negotiations failed and the second party defendants thereupon approached the plaintiff firm and a contract was entered into by and between them sometime towards the end of October, 1945, under which the former agreed to sell to the latter their house at Gaya for a consideration of ₹ 34,000. Out of this consideration, a sum of ₹ 30,000 was paid by the plaintiff firm on behalf of the vendors to a creditor of the latter on 28t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntract of sale with the plaintiff. The Subordinate Judge, who heard the suit, came to the conclusion, on the evidence adduced by the parties, that the story of a contract of sale, as alleged by the plaintiff, was not established and it was not in pursuance of any such contract that the plaintiff was put in possession of the house. It was held that the defendants' story was true and that the plaintiff did advance a sum of ₹ 30,000 to the defendants second party, but this was by way of a loan and not as part payment of the consideration money. So far as the first party defendants were concerned, it was held that they Were bona fide purchasers for value without notice. In view of these findings, the Subordinate Judge dismissed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the vendors was a minor, no relief in equity by way of specific performance of the contract should be given in this case as it would substantially prejudice the interest of the minor. In the opinion of the High Court, the money decree granted against the second party defendants was not warranted in law as no case of a loan was made by the plaintiff in the plaint and no relief was claimed on that basis. The result was that the suit was dismissed in its entirety and the decree for recovery of money that was made in favour of the plaintiff by the trial court was set aside. It is against this judgment that the plaintiff has come up on appeal to this court. The learned counsel appearing for the appellant contends before us that the findings u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the agreement upon which the plaintiff's case is based and the decision hinges primarily upon appreciation of the oral evidence that has been adduced by the parties. The trial judge, who had the witnesses before him, was the best person to weigh and appraise their credibility and the conclusions which he arrived at, have been affirmed in their entirety by the High Court on appeal. In these circum- stances, we see no reason whatsoever to go beyond the facts which have been found against the appellant by both the courts below. As regards the other point, however, we are of the opinion that the decision of the trial court was right and that the High Court took an undoubtedly rigid and technical view in reversing this part of the decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit. As an illustration of this principle, reference may be made to the pronounce- ment of the Judicial Committee in Babu Raja Mohan Manucha v. Babu Manzoor (1). This appeal arose out of a suit commenced by the plaintiff appellant to enforce a mortgage security. The plea of the defendant was that the mortgage was void. This (1) 70 I.A. 1. pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both in the plaint as well as in the evidence and it is doubtful whether even if the story was true, it could constitute a valid tender in law. The defendants undoubtedly had the use of this money all this time and in our opinion the plaintiff is entitled to some interest. The learned counsel appearing for both the parties, at the close of their arguments, left this question of interest to be deter- mined by us and we think that it would be quite fair if we allow interest on the sum of ₹ 30,000 at the rate of 4% per annum from the beginning of September, 1943. It is admitted that the plaintiff's possession of the house ceased by the end of August, 1943. The result is that we allow the appeal in part; the decree made by the High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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