Anandappa Vs. Tammanasa & Ors  Insc 175 (13 March 2003)
Kumar & S. B. Sinha. S.B. Sinha, J :
No. 3 is the appellant herein. Defendant No. 1 is admittedly the owner of the
property in suit. Defendant No. 2 is the constituted attorney of Defendant No.
1, who, on or about 1.10.1978 is said to have entered into an agreement for
sale with the Plaintiff in respect of the suit property bearing No. C.T.S. No.
1921/A of Gadag Betageri City Municipal area for a total consideration of Rs.
30,000/- out of which a sum of Rs. 20,000/- was allegedly paid as advance. In
terms of the said agreement, the plaintiff allegedly was put in possession of
the suit property.
Deed of sale, pursuant to the said agreement was to be executed within 3 years
from the date thereof on payment of the balance sum of Rs. 10,000/-. Defendant
No. 3, the appellant herein, purchased the suit property by reason of a
registered deed of sale dated 15.5.1984 for valuable consideration of Rs.
50,000/-. The plaintiff on or about 15.5.1984 admittedly made an enquiry in the
C.T.S. Office to obtain the C.T.S. extract of the suit property, when he came
to learn that the defendant already executed a registered sale deed in respect
of the suit property in favour of the appellant whereupon he served a notice
dated 8.8.1984 upon Defendant Nos. 1 and 2 demanding specific performance of
the said agreement of sale dated 1.10.1978. As regards cause of action, in the
Plaint it was stated:
cause of action to this suit arose on 8.8.1984 when the plaintiff got served
the notice to the defendants demanding specific performance of agreement of
sale dated 1.10.1978 and when the defendants failed to execute the sale deed in
favour of the plaintiff." It is not in dispute that the plaintiff in his
plaint did not make any averment as regard his readiness and willingness to
perform his part of the contract as is mandatorily required in terms of Section
16(c) of the Specific Relief Act, 1963. He merely alleged:
the said agreement of sale, the Plaintiff demanded the Defendant No. 2 to bring
the Defendant No. 1 and to execute a registered sale deed both together after
receiving the balance of sale consideration. But Defendant No. 2 went on
postponing the same by one or the other reasons.
last this Plaintiff demanded Defendant Nos.1 and 2 by giving notice. Even
though the Defendant No. 2 has received the notice, he has not replied
anything. The notice sent to the Defendant No. 1 returned unclaimed. Inspite of
the notice, Defendant No. 1 and 2 failed to execute the registered sale deed in
respect of the suit property in favour of the Plaintiff." No notice
admittedly was served on Defendant No. 1, the owner of the property.
learned trial judge dismissed the suit holding inter alia that the plaintiff
having not averred his readiness and willingness to perform his part of
contract in the plaint, he is not entitled to a decree for specific performance
of contract. The learned trial judge further, having regard to the conduct of
the plaintiff, refused to grant the discretionary relief in favour of the
plaintiff. The First Appellate on an appeal from the said judgment agreed with
the said findings.
second appeal filed by the plaintiff, the High Court, however, reversed the
said findings. Therein, the only substantial question of law which was framed
was as regards the readiness and willingness on the part of the plaintiff to
perform his part of contract. The High Court answered the said question merely
stating: "The question of law that was framed was regarding the
willingness and readiness on the part of the plaintiff to perform his part of
the contract. But that question does not arise for consideration for simple
reason that Defendants 1 & 2 did not contest the case. It, however, entered
into the question as to whether the appellant herein was a bonafide purchaser
for value. The said question was answered in the negative solely on the ground
that the appellant did not examine himself in the suit." Mr. Mahale, the
learned counsel appearing on behalf of the appellant has raised a short
question in support of this appeal. The learned counsel would contend that in
view of the fact that the plaintiff failed and/or neglected to aver in the
plaint his readiness and willingness to perform his part of contract, the High
Court must be held to have erred in passing the impugned judgment solely on the
ground that defendant No. 1 did not contest the suit. The learned counsel would
submit that an averment in terms of Section 16(c) of the Specific Relief Act,
1963 is mandatory.
reliance in this regard was placed on Syed Dastagir vs. T.R. Gopalakrishna Setty
reported in (1999) 6 SCC 337.
learned counsel would next contend that, in any event, having regard to the
fact that the trial court as also the first appellant court did not exercise
their discretionary jurisdiction in terms of Section 20 of the said Act, the
high court should not have interfered therewith.
urged that although time was not the essence of contract, but it was obligatory
on the part of the plaintiff to file a suit within a reasonable time. Reliance
in this connection has been placed on K.S. Vidyanadam & Ors. vs. Vairavan
reported in (1997) 3 SCC 1.
Sharan, the learned senior counsel appearing on behalf of the respondents, on
the other hand, would submit that having regard to the statements by the
Plaintiff made in Paragraph 6 of the plaint, as referred to hereinbefore, as
also in his deposition wherein he stated that even on that day he was ready to
pay the balance amount of consideration to the Defendants, it must be held that
there has been a substantial compliance of the requirements of Section 16(c) of
the Specific Relief Act, 1963. The learned counsel in support of the said
contention would place strong reliance in Motilal Jain vs. Ramdasi Devi &
Ors. (2000) 6 SCC 420.
learned counsel would further urge that the pleading should not be strictly
construed. Reliance in this connection was placed on Kidar Lall Seal & Anr.
vs. Hari Lall Seal (1952) SCR 179.
basic fact of the matter is not in dispute. The agreement was entered into on
or about 1.10.1978. Apart from the vague statements made in Paragraph 6 of the
plaint as noticed hereinbefore, the plaintiff has not placed any material on
record to show that at any point of time and far less within a period of 3
years from the date of the said agreement, he ever asked Defendant No. 1 to
execute a deed of sale in his favour or tendered the balance amount of
consideration to her. The plaintiff admittedly served a notice dated 8.8.1984
upon the Defendant No. 2 alone, that is much after the expiry of the said
period of 3 years. He, only upon having come to learn that Defendant No. 1 had
transferred the property in suit in favour of the appellant herein, filed the
suit. Admittedly the Defendant No. 1 did not receive any notice.
16(c) of the Specific Relief Act reads thus:
performance of a Contract cannot be enforced in favour of a person.
fails to aver and prove that he has performed or has always been ready and
willing to perform the essential terms of the contract which are to be
performed by him, other than terms of the performance of which has been
prevented or waived by the defendant." In terms of the aforementioned
provision, it is incumbent upon the plaintiff both to aver and prove that he
had all along been ready and willing to perform the essential terms of contract
which were required to be performed by him.
47 and 48 of the Appendix A of the Code of Civil Procedure prescribe the manner
in which such averments are required to be made by the plaintiff. Indisputably,
the plaintiff has not made any averment to that effect. He, as noticed
hereinbefore, merely contended that he called upon defendant No. 2 to bring
defendant No. 1 to execute a registered sale deed.
from the fact that the date of the purported demand has not been disclosed,
admittedly no such demand was made upon defendant No. 1. We may notice, at this
juncture, that the plaintiff in his evidence admitted that defendant No. 1 had
revoked the power of attorney granted in favour of defendant No. 2. In his
deposition, he merely stated that such revocation took place after the
agreement for sale was executed. If he was aware of the fact that the power of
attorney executed in favour of defendant No. 2 was revoked, the question of any
demand by him upon the defendant No. 2 to bring the defendant No. 1 for
execution of the agreement for sale would not arise at all. Furthermore,
indisputably the said power of attorney was not a registered one. Defendant No.
2, therefore, could not execute a registered deed of sale in his favour. The
demand, if any, for execution of the deed of sale in terms of the agreement of
sale could have been, thus, made only upon the Defendant No. 1, the owner of
the property. The balance consideration of Rs.10,000/- also could have tendered
only to Defendant No. 1. As indicated hereinbefore, the purported notice was
issued only on 8.8.1984, that is, much after the expiry of period of three
years, within which the agreement of sale was required to be acted upon.
in his deposition, he merely said: "As per the agreement the defendant No.
2 did not execute the sale deed. I issued a notice calling upon the defendant
Nos. 1 and 2 to execute the sale deed after receiving the balance
consideration. However they did not come forward to execute the sale deed
despite the receipt of the notice. Even today I am ready to pay the balance
consideration of Rs.10,000/-." These statements do not satisfy the
requirements of Section 16(c) of the Specific Relief Act.
requirement to comply with the mandatory provisions of Section 16(c) of the
Specific Relief Act came up for consideration of this Court in Ouseph Varghese
vs. Joseph Aley & Ors. (1969) 2 SCC 539 wherein it was held:
plaintiff did not plead either in the plaint or at any subsequent stage that he
was ready and willing to perform the agreement pleaded in the written statement
of defendant. A suit for specific performance has to conform to the
requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil
Procedure Code. In a suit for specific performance it is incumbent on the
plaintiff not only to set out agreement on the basis of which he sues in all
its details, he must go further and plead that he has applied to the defendant
specifically to perform the agreement pleaded by him but the defendant has not
done so. He must further plead that he has been and is still ready and willing
to specifically perform his part of the agreement. Neither in the plaint nor at
any subsequent stage of the suit the plaintiff has taken those pleas. As
observed by this Court in Pt. Prem Raj vs. D.L.F. Housing and Construction
(Private) (Ltd.) and Another, (Civil Appeal No. 37/66, decided on 4-4-1968)
[reported in 1968 (3) SCR 648] that it is well settled that in a suit for
specific performance the plaintiff should allege that he is ready and willing
to perform his part of the contract and in the absence of such an allegation
the suit is not maintainable." Without noticing the said decision,
however, another two Judges bench in R.C. Chandiok and Anr. vs. Chuni Lal Sabharwal
and Ors. reported in (1970) 3 SCC 140 stated:
and willingness cannot be treated as a straight jacket formula. These have to
be determined from the entirety of facts and circumstances relevant to the
intention and conduct of the party concerned. In our judgment there was nothing
to indicate that the appellants at any stage were not ready and willing to perform
their part of the contract." In Abdul Khader Rowther vs. P.K. Sara Bai and
Ors. reported in AIR 1990 SC 682 this Court followed Ouseph Varghese (supra)
plaint does not contain the requisite pleadings necessary to obtain a decree
for specific performance.
equitable remedy recognized by the Specific Relief Act cannot be had on the
basis of such pleadings and evidence." The question again came up for
consideration before a three Judge bench of this Court in Syed Dastagir vs.
T.R. Gopalakrishna Setty reported in (1999) 6 SCC 337.
also the earlier decisions of this Court in Abdul Khader Rowther (supra) and Ouseph
Varghese (supra) were not referred to.
inter alia noticing R.C. Chandiok (supra), this Court observed:
It was held in the case of R.C. Chandiok v. Chuni Lal Sabharwal (1970) 3 SCC
140 that readiness and willingness cannot be treated as a strait-jacket
has to be determined from the entirety of the facts and circumstances relevant
to the intention and conduct of the party concerned. Finally, we have no
hesitation to hold that the pleading as made by the plaintiff not only shows
his readiness and willingness to perform his part of the obligation under the
contract but by tendering the total amount shows he has performed his part of
the obligation. We also construe such a plea to be a plea of "readiness
and willingness" as required under Section 16(c). In view of the aforesaid
findings we hold that the High Court committed an error by defeating the claim
of the plaintiff on the basis of a wrong interpretation of his plea in terms of
the said section." In that case the requisite averments of the plaintiff
in the Plaint was to the following effect:
defendant has entered into an agreement with the plaintiff on 1-8-1960 ... for a consideration of Rs. 9500.00 ... the
plaintiff has agreed to that on adjustment of the mortgage amount of Rs.
5000.00 and Rs. 500.00 paid towards advance payment of the sale price, that on
payment of the obtaining sum of Rs. 4000.00 and off, he would execute a proper
sale deed conveying the suit schedule properties. ... the defendant has
accordingly received a sum of Rs. 3680.00 ... from the plaintiff and has
endorsed the same on the agreement on 21-12-1965.
further received Rs. 100.00 on 21-3-1966 and Rs.
100.00 on 4-5-1966 and in all Rs. 3880.00. These
payments are also duly written up in the account-book of the defendant. The
plaintiff approached the defendant to receive the balance amount of Rs. 120.00
towards the sale price and execute the proper sale and he agreed. He evaded and
hence a legal notice was issued on 23-2-1967 calling upon him to perform his
part of the contract. ...
(plaintiff) has today deposited in court Rs. 120.00 under RO No. being the balance
due to the defendant." The said averments were held to be in spirit and
substance although may not be in letter and form of "readiness and
willingness" on the part of the Plaintiff stating:
..It is true that in the pleading the specific words "ready and willing to
perform" in this nomenclature are not there but from the aforesaid plea,
could it be read that the plaintiff was not ready and willing to perform his
part of that obligation ? In other words, can it be said that he has not
pleaded that he is "ready and willing" to perform his part ? Courts
cannot draw any inference in the abstract or to give such hypertechnical
interpretation to defeat a claim of specific performance which defeats the very
objective for which the said Act was enacted. The section makes it obligatory
to a plaintiff seeking enforcement of specific performance that he must not
only come with clean hands but there should be a plea that he has performed or
has been and is ready and willing to perform his part of the obligation. Unless
this is there, Section 16(c) creates a bar to the grant of this discretionary
relief. As we have said, for this it is not necessary to plea by any specific
words, if through any words it reveals the readiness and willingness of the
plaintiff to perform his part of the obligation then it cannot be said there is
non-compliance of the said section." (Emphasis supplied) This Court
further noticed that despite Explanation appended to Section 16(c), the
plaintiff can always tender the amount to the defendant to deposit in the court
for performance towards the contract under the obligation of the contract with
a view to exhibit to perform his part of obligation.
aforementioned decision was referred to again by a two Judge bench of this
Court in Motilal Jain vs. Ramdasi Devi and Ors. reported in (2000) 6 SCC 420.
In that case also this Court took into consideration the averments made by the
plaintiff in Paragraphs 6 to 11 of the plaint and opined:
is thus clear that an averment of readiness and willingness in the plaint is
not a mathematical formula which should only be in specific words. If the
averments in the plaint as a whole do clearly indicate the readiness and
willingness of the plaintiff to fulfil his part of the obligations under the contract
which is the subject-matter of the suit, the fact that they are differently
worded will not militate against the readiness and willingness of the plaintiff
in a suit for specific performance of contract for sale.
instant case a perusal of paras 6 to 11 of the plaint does clearly indicate the readiness and willingness of
the plaintiff. The only obligation which he had to comply with was payment of
balance of consideration. It was stated that he demanded the defendant to
receive the balance of consideration of Rs. 8000 and execute the sale deed. The
defendant was in Patna (Bihar) at the time of notices and when he came back to his place
the plaintiff filed the suit against him. In support of his case, he adduced
the evidence of PW 1 and PW 2. The plaintiff had parted with two-thirds of the
consideration at the time of execution of Ext. 2. There is no reason why he
would not pay the balance of one-third consideration of Rs. 8000 to have the
property conveyed in his favour." In Pushparani S. Sundaram and Ors. vs.
Pauline Manomani James and Ors. reported in (2002) 9 SCC 582 it is stated:
far there being a plea that they were ready and willing to perform their part
of the contract is there in the pleading, we have no hesitation to conclude,
that this by itself is not sufficient to hold that the appellants were ready
and willing in terms of Section 16(c) of the Specific Relief Act. This requires
not only such plea but also proof of the same. Now examining the first of the
two circumstances, how could mere filing of this suit, after exemption was
granted be a circumstance about willingness or readiness of the plaintiff. This
at the most could be the desire of the plaintiff to have this property.
be for such a desire this suit was filed raising such a plea. But Section 16(c)
of the said Act makes it clear that mere plea is not sufficient, it has to be
Next and the only other circumstance relied upon is about the tendering of Rs.
5000, which was made on 2.3.1982 which was even prior to the grant of the
exemption. Such small feeder to the vendor is quite often made to keep a vendor
in good spirit. In this case the only other payment made by the plaintiff was
Rs.5000 at the time of execution of the agreement of sale. Thus, the total amount
paid was insignificantly short of the balance amount for the execution of the
sale deed. Thus in our considered opinion the said two circumstances taken
together, is too weak a filament to stand even to build an image of readiness
and willingness. Section 16(c) of the Specific Relief Act requires that not
only there be a plea of readiness and willingness but it has to be proved so.
It is not in dispute that except for a plea there is no other evidence on
record to prove the same except the two circumstances. It is true that mere
absence of a plaintiff coming in the witness box by itself may not be a factor
to conclude that he was not ready and willing in a given case as erroneously
concluded by the High Court." (emphasis supplied) The decisions of this
Court, therefore, leave no manner of doubt that a Plaintiff in a suit for
specific performance of contract not only must raise a plea that he had all
along been and even on the date of filing of suit was ready and willing to
perform his part of contract, but also prove the same.
in certain exceptional situation where although in letter and spirit, the exact
words had not been used but readiness and willingness can be culled out from
reading all the averments made in the Plaintiff as a whole coupled with the
materials brought on record at the trial of the suit, to the said effect, the
statutory requirement of Section 16(c) of the Specific Relief Act may be held
to have been complied with.
regard to the facts and circumstances of the case and keeping in view the
decisions of this Court, as referred to hereinbefore, we are of the opinion
that the plaintiff cannot be said to have even substantially complied with the
requirements of law.
Seal & Anr. vs. Hari Lall Seal (1952) SCR 179, whereupon reliance has been
placed by Mr. Amarendra Saran, has no application in the instant case. Therein,
this Court was concerned with the 'inartistical wordings' of the relief claimed
by the plaintiff, having regard to Order XXXIV of the Civil Procedure Code. It
reading the two reliefs together, I am of opinion that though the claim is
inartistically worded the plaintiff has in substance asked for a mortgage
decree up to a limit of Rs. 40,253-11-10 with interest against each defendant.
No other kind of decree could be given under Order XXXIV. Therefore, though he
has not used the word 'subrogation' he has asked in substance for the relief to
which a subrogee would be entitled under the Transfer of Property Act."
There is another aspect of the matter which cannot be lost sight of.
plaintiff filed the suit almost after six years from the date of entering into
the agreement to sell. He did not bring any material on records to show that he
had ever asked defendant No. 1, the owner of the property, to execute a deed of
sale. He filed a suit only after he came to know that the suit land had already
been sold by her in favour of the appellant herein. Furthermore, it was
obligatory on the part of the plaintiff for obtaining a discretionary relief
having regard to Section 20 of the Act to approach the court within a
reasonable time. Having regard to his conduct, the plaintiff was not entitled
to a discretionary relief.
Ammal vs. Seeni Ammal reported in (2002) 1 SCC 134 the law is stated in the
When, concededly, the time was not of the essence of the contract, the
appellant-plaintiff was required to approach the court of law within a
reasonable time. A Constitution Bench of this Hon'ble Court in Chand Rani v. Kamal
Rani (1993) 1 SCC 519 held that in case of sale of immovable property there is
no presumption as to time being of the essence of the contract. Even if it is
not of the essence of contract, the court may infer that it is to be performed
in a reasonable time if the conditions are
the express terms of the contract;
the nature of the property; and
the surrounding circumstances, for example, the object of making the contract.
the purposes of granting relief, the reasonable time has to be ascertained from
all the facts and circumstances of the case.
K. S. Vidyanadam v. Vairavan (1997) 3 SCC 1 this Court held : (SCC p. 11, para
14) "Even where time is not of the essence of the contract, the plaintiff
must perform his part of the contract within a reasonable time and reasonable
time should be determined by looking at all the surrounding circumstances
including the express terms of the contract and the nature of the
The word "reasonable" has in law prima facie meaning of reasonable in
regard to those circumstances of which the person concerned is called upon to
act reasonably knows or ought to know as to what was reasonable. It may be
unreasonable to give an exact definition of the word "reasonable".
The reason varies in its conclusion according to idiosyncrasy of the individual
and the time and circumstances in which he thinks. The dictionary meaning of
the "reasonable time" is to be so much time as is necessary, under
the circumstances, to do conveniently what the contract or duty requires should
be done in a particular case. In other words it means, as soon as circumstances
permit. In P. Ramanatha Aiyar's The Law Lexicon it is defined to mean :
reasonable time, looking at all the circumstances of the case; a reasonable
time under ordinary circumstances; as soon as circumstances will permit; so
much time as is necessary under the circumstances, conveniently to do what the
contract requires should be done; some more protracted space than 'directly';
such length of time as may fairly, and properly, and reasonably be allowed or
required, having regard to the nature of the act or duty and to the attending
circumstances; all these convey more or less the same idea"." In Lourdu
Mari David and Ors. vs. Louis Chinnaya Arogiaswamy and Ors. reported in (1996)
5 SCC 589 this Court observed:
It is settled law that the party who seeks to avail of the equitable
jurisdiction of a court and specific performance being equitable relief, must
come to the court with clean hands. In other words the party who makes false
allegations does not come with clean hands and is not entitled to the equitable
relief." Yet again, both the trial court and the first appellate court
refused to exercise their discretionary jurisdictions in favour of the
plaintiff. The High Court, in our opinion, should not have interfered therewith
without arriving at a finding that the discretion has been exercised by the
Courts below on wrong legal principle.
Kumar Jain and Anr. vs. Jaipur Traders Corporation Pvt. Ltd. reported in (2002)
5 SCC 383 this Court observed:
We are of the view that the High Court failed to address itself to certain
crucial factors which disentitles the plaintiff to equitable relief. The High
Court reversed a well-considered judgment of the trial court without adverting
to the reasoning of the trial court except in a cursory manner. In the view we
are taking, it is not necessary for us to dilate on various legal issues
debated before us. We shall proceed on the basis that in law the plaintiff
could annul the contract of sale before the act of registration got completed
and title passed to the appellants. We shall further assume that the plaintiff
in fact rescinded the contract with effect from the date of expiry of the time
stipulated in the fourth and final notice dated 3-7-1973. If such rescission or
termination of contract is not justifiable on facts or having regard to the
conduct of the plaintiff, the equitable relief under Section 27 or 31 of the
Specific Relief Act has to be denied to the plaintiff, no further question
arises for consideration. In such a case, the appellants' plea has to be
accepted and the suit is liable to be dismissed." Yet again in Nirmala Anand
vs. Advent Corporation (P) Ltd. and Ors. reported in (2002) 8 SCC 146 this
It is true that grant of decree of specific performance lies in the discretion
of the court and it is also well settled that it is not always necessary to
grant specific performance simply for the reason that it is legal to do so.
further well settled that the court in its discretion can impose any reasonable
condition including payment of an additional amount by one party to the other
while granting or refusing decree of specific performance." Since (Deceased)
By L.Rs and Ors. 2003 (2) SCALE 124] It is now also well settled that a court
of appeal should not ordinarily interfere with the discretion exercised by the
Uttar Pradesh Co-operative Federation Ltd. vs. Sunder Bros. reported in AIR
1967 SC 249 the law is stated in the following terms:
It is well-established that where the discretion vested in the Court under s.
34 of the Indian Arbitration Act has been exercised by the lower court the
appellate court should be slow to interfere with the exercise of that
discretion. In dealing with the matter raised before it at the appellate stage
the appellate court would normally not be justified in interfering with the
exercise of the discretion under appeal solely on the ground that if it had
considered the matter at the trial stage it may have come to a contrary
conclusion. If the discretion has been exercised by the trial court reasonably
and in a judicial manner the fact that the appellate court would have taken a
different view may not justify interference with the trial court's exercise of
discretion. As is often said, it is ordinarily not open to the appellate court
to substitute its own exercise of discretion for that of the trial Judge; but
if it appears to the appellate court that in exercising its discretion the
trial court has acted unreasonably or capriciously or has ignored relevant
facts then it would certainly be open to the appellate court to interfere with
the trial court's exercise of discretion. This principle is well-established;
but, as has been observed by Viscount Simon, L.C., in Charles Osenton & Co.
v. Johnston 1942 AC 130 at p. 138:
law as to the reversal by a court of appeal of an order made by a Judge below
in the exercise of his discretion is well- established, and any difficulty that
arises is due only to the application of well-settled principles in an
individual case"." Yet again in Gujarat Steel Tubes Ltd., etc. vs.
Gujarat Steel Tubes Mazdoor, Sabha and others (AIR 1980 SC 1896) the law is
stated in the following terms:
While the remedy under Article 226 is extraordinary and is of Anglo-Saxon
vintage, it is not a carbon copy of English processes. Article 226 is a sparing
surgery but the lancet operates where injustice suppurates. While traditional
restraints like availability of alternative remedy hold back the court, and
judicial power should not ordinarily rush in where the other two branches fear
to tread, judicial daring is not daunted where glaring injustice demands even
affirmative action. The wide words of Article 226 are designed for service of
the lowly numbers in their grievances if the subject belongs to the court's
province and the remedy is appropriate to the judicial process. There is a
native hue about Article 226, without being anglophilic or anglophobic in
from this jurisprudential perspective, we have to be cautious both in not
overstepping as if Article 226 were as large as an appeal and not failing to intervence
where a grave error has crept in. Moreover, we sit here in appeal over the High
Court's judgment. And an appellate power interferes not when the order appealed
is not right but only when it is clearly wrong. The difference is real, though
fine." For the foregoing reasons, we are of the opinion that the impugned
judgment cannot be sustained. It is set aside accordingly.