Srinivas Ram Kumar Vs. Mahabir Prasad
& Ors [1951] INSC 9 (9 February 1951)
MUKHERJEA, B.K.
SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND
CITATION: 1951 AIR 177 1951 SCR 277
CITATOR INFO :
R 1964 SC 136 (11) R 1964 SC 818 (9) D 1978
SC1362 (25)
ACT:
Pleadings--Inconsistent pleas--Plaintiff
suing for specific performance alleging that money was paid as price--Defendant
pleading that money was received as loan--Plaintiff's case not proved-Whether
decree can be given for recovery of money as loan on defendant's plea.
HEADNOTE:
Though the court would not grant relief to
the plaintiff on a case for which there was no foundation in the pleadings and
which the other side was not called upon or had no opportunity to meet, yet,
when the alternative case which the plaintiff could have made was not only
admitted by the defendant in his written statement but was expressly put
forward as an answer to the claim which the plaintiff made in the suit. there
would be nothing improper in giving the plaintiff a decree upon the case which
the defendant himself makes. 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.
The plaintiff brought a suit for specific
performance of an agreement to sell a house alleging that he had paid Rs.
30,000 towards the price and had been put in possession in part performance of
the contract, but the defendant pleaded that the amount of Rs. 30,000 was
received as a loan and the plaintiff was put in possession only to facilitate
payment of interest, and the court found that the defendant's plea was true:
Held, that a decree could be passed in favour of the plaintiff for recovery of
the sum of Rs.
30,000 and interest remaining due under the
agreement of loan pleaded by the defendant, even though the plaintiff had not
set up such a case and it was even inconsistent with the allegations in the
plaint.
Babu Raja Mohan Manucha v. Babu Manzoor (70
I.A..1) referred to.
CIVIL APPELLATE JURISDICTION : Appeal from a
judgment and decree of the High Court of Judicature at Patna dated 29th August,
1947, in First Appeal No. 13 of 1945, modifying a decree of the Subordinate
Court of Gaya in O.S. No. 59 of 1943: Civil Appeal No. 82 of 278 S.P. Sinha (C.
R. Pattabhi Raman and B.K. Saran with him) for the appellant.
Udai Bhan Chaudhry for respondents Nos. 1 and
2.
Haris Chandra (N. C. Sen, with him) for
respondents Nos. 3 to 7.
1951. February 9. The judgment of the Court
was delivered by MUKHERJEA J. --This appeal is on behalf of the plaintiff and
it arises out of a suit for specific performance of a contract to sell a house
in the town of Gaya, belonging to the defendants second party who, it is
alleged, agreed to sell the house to the plaintiff but subsequently resiled
from the agreement and sold the same to the defendants first party who
purchased it with notice of the contract.
The plaintiff's case, in substance, is that
in September, 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 Rs. 34,000. Out of this
consideration, a sum of Rs. 30,000 was paid by the plaintiff firm on behalf of
the vendors to a creditor of the latter on 28th October, 1941. The vendors in
their turn put the plaintiff in possession of the house agreed to be sold in
part performance of the contract and promised to execute a conveyance as soon
as the title deeds were returned to them by Jadu Ram and the balance of
consideration money amounting to Rs. 4,000 was paid by the plaintiff. The
second party defendants, however, went back on their promise and did not
execute the conveyance in favour of the plaintiff even after they got back
their title deeds from Jadu Ram; and on the other hand, they sold the house to
the defendants first 279 party on August 13, 1943. The plaintiff was thus
obliged to bring this suit, claiming specific performance of the contract of
sale.
The suit was contested by both sets of
defendants. The second party defendants contended inter alia that they never
agreed to sell their house at Gaya to the plaintiff, and the story of a
contract of sale as set up by the plaintiff was entirely false. They admitted
that they were in need of money and hence approached the plaintiff for a loan
and the plaintiff did advance to them a sum of Rs.
30,000 carrying interest at 6% per annum. It
was entirely for facilitating payment of interest due on this loan and not in
part performance of the contract of sale that the plaintiff was put in
possession of the same.
This defence was reiterated by the first
party. defendants who further pleaded that they were bona fide purchasers for
value having no notice of any contract 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 Rs. 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 plaintiff's claim for
specific performance but as the second party defendants admitted that they had
taken an advance of Rs. 30,000 from the plaintiff, a money decree was given to
the plaintiff for this sum against these defendants with interest at 6% per
annum from the date of the suit till realisation.
Against this decision, the plaintiff took an
appeal to the High Court at Patna, and the second party 280 defendants also
filed cross-objections challenging the propriety of the money decree that was
passed against them.
The appeal was heard by a Division Bench of
the Patna High Court who, by their judgment dated August 29, 1947, dismissed
the appeal of the plaintiff and allowed the cross objections preferred by the
second party defendants. The learned Judges held, concurring with the trial
court, that no case of concluded contract between the parties was established
by the evidence adduced in the case, and the fact of the plaintiff being put in
possession of the house could not be regarded as an act of part performance of
any such contract. The High Court agreed with the trial judge in holding that
the sum of Rs. 30,000 was advanced as a loan by the plaintiff to the second
party defendants, though the evidence was not very clear regarding payment of
interest upon it, and that the first party defendants were purchasers for value
without notice. The High Court held further that even if there was a contract,
its terms were vague and indefinite, and as one 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 upon which the courts below
disbelieved the story of the plaintiff and dismissed the claim for specific
performance are not proper findings of fact which could be legitimately
inferred from the evidence adduced in' this case. In the alternative it is
argued that the High Court was wrong in setting aside the decree for money
which was given 281 against the second party defendants by the trial judge.
The first contention put forward by the
learned counsel appears to us to be plainly unsustainable. When the courts
below have given concurrent findings on pure questions of fact, this court
would not ordinarily interfere with these findings and review the evidence for
the third time unless there are exceptional circumstances justifying departure
from this normal practice. The position may undoubtedly be different if the
inference is one of law from facts admitted and proved or where the finding of
fact is materially affected by violation of any rule of law or procedure. The
practice adopted by this court is similar to what has always been acted upon by
the Judicial Committee. To quote the words of Lord Thankerton in Bibhabati v.
Ramendra Narayan (1) "it is not by any means a cast iron practice'';
there may occur cases of unusual nature which
might constrain us to interfere with the concurrent findings of fact to avoid
miscarriage of justice. The case before us however, has nothing unusual in it
and involves a pure question of fact. There is no document in writing in proof
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 circumstances, 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 decree of the Subordinate Judge. It is true that it was no part of the
plaintiff's case as made in the plaint that 282 the sum of Rs. 30,000 was
advanced by way of loan to the defendants second party. But it was certainly
open to the plaintiff to make an alternative case to that effect and make a
prayer in the alternative for a decree for money even if the allegations of the
money being paid in pursuance of a contract of sale could not be established by
evidence. The fact that such a prayer would have been inconsistent with the
other prayer is not really material. A plaintiff may rely upon different rights
alternatively and there is nothing in the Civil Procedure Code to prevent a
party from making two or more inconsistent sets of allegations and claiming
relief thereunder in the alternative. The question, however, arises whether, in
the absence of any such alternative case in the plaint it is open to the court
to give him relief on that basis. The rule undoubtedly is that the court cannot
grant relief to the plaintiff on a case for which there was no foundation in
the pleadings and which the other side was not called upon or had an
opportunity to meet. But when the alternative case, which the plaintiff could
have made, was not only admitted by the defendant in his written statement but
was expressly put forward as an answer to the claim which the plaintiff made in
the suit, there would be nothing improper in giving the plaintiff a decree upon
the case which the defendant 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 pronouncement 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.
283 plea was given effect to by both the
lower 'courts as well as by the Privy Council. But the Privy Council held that
it was open in such circumstances to the plaintiff to repudiate the transaction
altogether and claim a relief outside it in the form of restitution under
section 65 'of the Indian Contract Act. Although no such alternative claim was
made in the plaint, the Privy Council allowed it to be advanced and gave a decree
on the ground that the respondent could not be prejudiced by such a claim at
all and the matter ought not to be left to a separate suit. It may be noted
that this relief was allowed to the appellant even though the appeal was heard
ex parte in the absence of the respondent.
Mr. Harish Chandra appearing for the second
party defendants raised the question of interest in connection with the
plaintiff's claim for a money decree. His contention is that the plaintiff
could not claim any interest so long has he was in possession of the house and
he could not also claim any interest after that, as his clients made a tender
of the sum of Rs. 30,000 by sending a hundi for that amount to the plaintiff by
registered post on July 12, 1943, which the plaintiff refused to accept. The
first part of the contention is undoubtedly correct and is not disputed on
behalf of the plaintiff. We feel difficulty, however, in accepting the second
part of the contention raised by Mr. Harish Chandra. The receipt of this hundi
was totally denied by the plaintiff 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 determined by us and we
think that it would be quite fair if we allow interest on the sum of Rs. 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.
284 The result is that we allow the appeal in
part; the decree made by the High Court is affirmed in so far as it dismissed
the claim for specific performance The plaintiff, however, will be entitled to
a money decree for the sum of Rs. 30,000 against the defendants second party
with interest at 4% per annum from the 1st of September, 1943, to the date of
realisation. Each party to this appeal will bear his own costs.
Appeal allowed in part.
Agent for the appellant: R.C. Prasad.
Agent for respondents: Tarachand Brij Mohan
Lal.
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