Shet Vs. Dr. C.S.G.K. Setty & Ors  INSC 321 (15 May 1998)
Majmudar, M. Jagannadha Rao M. Jagannadha Rao. J.
15TH DAY OF MAY, 1998 Present:
Mr. Justice S.B. Majmudar Hon'ble Mr. Justice M. Jagannadha Rao R.F. Nariman, Sr.Adv.,
Girish Ananthamurthy, G.V.Chandrasekhar, B.Y. Kulkarni, Advs. With him for the
appellant M.Rama Jois, Sr. Adv., P. Mahale, Adv. with him for the Respondent in
No.1 G.L. Sanghi, Sr.Adv., T.V. Ratnam., Adv. with him for the Respondent Nos.
following Judgment of the Court was delivered:
appellant is the plaintiff. He filed the suit O.S No. 50 of 1985 for specific
performance of an agreement of sales of house property located at Shimoga, Karnataka State executed in his favour. He succeeded in the trial court but
on appeal by the Vendors-defendants, the Judgment of the trial court was set
aside by the High Court and the suit was dismissed. Against the said Judgment
of the High Court, this appeal was preferred.
case of the appellant in the suit filed on the file of the Civil Judge, Shimoga
was as follows : The defendants 1 to 3 are three brothers and are joint owners
of the house at Shimoga. The Ist 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 Ist defendant. There were consultations between
plaintiff and the Ist defendant which started in 1983 by way telephone calls
and letters and 'after the negotiations reached a final stage' the Ist
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 Ist defendant, a
draft agreement of sale was 'approved' by the Ist defendant with small changes
made in his own handwriting and the Ist 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).
agreed consideration was Rs. 5 lakhs and the purchaser agreed to bear the stamps
and registration charges. It was also agreed that the sale deed was to be
executed on or before 30.6.1984 or within a reasonable time and that thereafter
the plaintiff would be put in possession. The Ist defendant did not accept the
Bank drafts but said he would accept the entire consideration in one lump sum
at the time of registration. The plaintiff returned to Shimoga and the further
correspondence 'only confirmed that the defendants would execute the sale
deed'. The plaintiff received a telegram (Ex. p7 dated 4.4.84) addressed to PW
2 that the terms of the agreement were acceptable. Further, the 3rd defendant
also "confirmed" the terms of the agreement by letter dated 11.4.84
(Ex .P6). The plaintiff received another letter dated 18.4.1984 (Ex.P4) which
stated that 1st defendant would be coming over to Bangalore on 28.4.1984.
met at Bangalore and it was agreed that plaintiff
was to be ready with the entire sale consideration by about 3rd week of June
1984. The plaintiff raised finances by selling some of his properties. The
plaintiff was ready and willing to perform the contract. The Ist defendant came
to Shimoga on or about 17.6.1984 but surprisingly he did not meet the
plaintiff. On the other hand defendants gave a paper advertisement on 26.6.84
for sale of the house. Plaintiff then got a regd. notice dated 2.7.84 (Ex.P12)
issued and defendants 2 and 3 give a reply dated 31.7.84 (Ex . P16).
suit was laid for specific performance of the agreement of sale said to be
dated 25.1.84 entered into at Delhi and for posession
and also for permanent injunction restraining alienation by defendants.
written statement was filed by the Ist defendant contending mainly that there
was correspondence between parties, the negotiations did not reach any 'final'
stage and that there was 'no concluded contract'. There were only proposals and
counter proposals. Sale consideration was not Rs .5 lakhs.
The Ist defendant had an obligation to consult his brothers. They were not
willing for a consideration of Rs.5 lakhs. The Ist defendant did not state, as
contended, in any telegram dated 4.4.84 nor any letter dated 11.4.84.
sent another draft agreement(Ex. D11) alongwith his letter dated 29.31984 (Ex
.P8) and the Ist defendant made corrections therein, especially regarding
consideration, correcting the figure Rs .5 lakhs as Rs.6.50 lakhs - apart from
other corrections. The Ist defendant did not ask the plaintiff to be ready by
June 1984 for registration 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 Ist
defendant. The suit was liable to be dismissed. These were the allegations in
the said written statement of the 1st Defendant.
2 and 3 adopted the written statement of Ist defendant.
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.
defendants 1 to 3 appealed to the High Court. The High Court reversed the
decree and dismissed the suit. It held that there was no concluded contract on
25.1.1984 at Delhi and this was clear from the
as the subsequent correspondence was concerned, it was clear from Ex.P5 dated
10.4.84 written by Ist defendant that the Ist defendant was ready to execute
the agreement as per the "talks" that took place at Delhi on
25.1.1984 and he had written to the plaintiff to go over to Delhi or he would
come to Bangalore. He requested the plaintiff to inform him about the
plaintiff's decision in regard to the matter.
letter addressed to plaintiff also said the same thing. As per Ex .P6 letter
dated 11.4.84 of defendants the ball was left in the court of the plaintiff
'awaiting his confirmation', but the plaintiff did not send any reply. Ex .P4
letter dated 18.4.84 of Ist defendant showed that he had sent the agreement
sent by the Plaintiff with certain alterations and that he would be reaching on
28th. But after Ist defendant arrived at Bangalore on 27.4.84 , plaintiff did not meet him. It was not possible to say
that parties had agreed for Rs. 5 lakhs at any stage. The draft sent to the ist
defendant alongwith Ex.P4 letter was of course, Ex P3 as contended by plaintiff
and not the other draft Ex.D11, as contended by the 1st defendant. But it was
not possible to accept that plaintiff agreed to pay Rs.5 lakhs.
as the relief was for specific performance of an agreement of sale dated
25.1.1984 and no such agreement was proved, it must be held that plaintiff did
not come to Court with clean hands and discretion could not be exercised in his
favour. It was also stated that plaintiff, when he was asked if he wanted to
rely on any agreement of April 1984 and if he would amend the plaint, the
plaintiff's counsel was not willing to amend the plaint. Hence the suit was
liable to be dismissed. The appeal was allowed accordingly.
this appeal elaborate arguments were advanced by learned senior counsel Sri
R.F. Nariman for the plaintiff- appellant, learned senior counsel by Sri Rama Jois
for the Ist defendant and senior counsel Sri G.L. Sanghi for defendants 2 and
points arise for consideration :
Whether there was a concluded contract between the parties on 25.1.1984 at Delhi when plaintiff and PW 2 (Mr. Kalyankar)
met the Ist defendant at his Delhi
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?
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?
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:
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-notice Ex.P12 dated 2.7.84 wherein plaintiff has stated clearly that
at the Delhi meeting the ist defendant said that
he is yet to consult his two brothers. The correspondance between the parties
and PW2 subsequent to 25.1.84 has been read to us by the learned senior counsel
for the appellant-plaintiff and on reading the same, we are clear that the
finding of the High Court that there is no concluded agreement on 25.1.1984 at Delhi is unassailable and is absolutely
correct. The tenor of several letters from PW2 to 1st defendant after 25.1.1984
shows that consideration for sale was not finalised at Delhi. Learned senior counsel for the
appellant, after elaborate submissions has more or less accepted this position
and has concentrated on the question which we have set out under the third and
fourth points. Hence there can be no decree for specific performance of any
agreement dated 25.1.84 as none has been concluded on that day. We hold on
Point 1 accordingly.
learned senior counsel for the appellant has argued before us that plaintiff must
be given relief in respect of the agreement which, according to him, has been
concluded at Bangalore on 28.4.1984 and specific
performance can be granted in respect of such an agreement.
have already stated that, in the High Court, when and opportunity for amendment
of plaint was given by the High Court to the plaintiff the same was spurned and
not accepted by the plaintiff's counsel. That being the attitude of the
appellant in the High Court, we are of the view that the plaintiff can not be
given any relief for specific performance of any such agreement allegedly
concluded at Bangalore on 28.4.1994. Point 2 is also held against the
3 and 4:
are the points upon which the appellants counsel made elaborate submissions
citing several rulings of this Court and the High Courts under Order 6 and
Order 7 CPC. It has been argued that, without amendment of plaint, plaintiff
can ask the Court to construe the pleadings liberally.
as both sides have adduced evidence on the question whether there has been an
agreement at Bangalore on 28.4.1984 or not, the plaintiff
can still be given relief of specific performance on the basis of the original
plaint as it stands, even assuming there is no specific reference to a contract
being concluded at Bangalore on 28.4.84. Several rulings 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.
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.
20 of the Act reads as follows:
.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.
(3)-------------------------------- (4)------------------------------" It
is well settled that the circumstances referred to in dub-clauses (2) to (4) in
regard to exercise of discretion for granting a decree for specific performance
are not exhaustive. The relief for specific performance is discretionary and is
not given merely because it is legal but it is governed by sound judicial
principles. (See Madamsetty Satyanarayana vs. G. Yellogi Rao & Two Others [1965
(2) SCR 221] and Sardar Singh vs. Smt. Krishna Devi & Another [1994 (4) SCC
again well settled that, in a suit for specific performance, the evidence and
proof of the agreement must be absolutely clear and certain.
Pomeroy on 'Specific Performance of Contracts' (3rd Edn) (para 159) it is
stated clearly, that a "greater amount or degree of certainly is required
in the terms of an agreement, which is to be specifically executed in equity,
than is necessary in a contract which is to be the basis of an action at law
for damages. An action at law is founded upon the mere non-performance by the
defendant, and this negative conclusion can often be established without
determining all the terms of the agreement with exactness.
suit in equity is wholly an affirmative proceeding. The mere fact of non
performance is not enough; its object is to procure a performance by the
defendant, and this demands a clear, definite, and precise understanding of all
must be exactly ascertained before their performance can be enforced. This
quality of certainty can best be illustrated by examples selected from the
decided cases........" The question is whether, when parties have led
evidence in regard to a contract not pleaded in the evidence, relief can be
granted on the basis of the evidence and whether the plaintiff can be allowed
to give a go-bye to the specific plea in the plaint. Is there any difference
between suits for specific performance and other suits? It appears to us that
while normally it is permissible to grant relief on the basis of what emerges
from the evidence - even if not pleaded, provided there is no prejudice to the
opposite party, such a principle is not applied in suits relating to specific
performance. In Gonesh Ram vs. Ganpat Rai [AIR 1924 Cal 461], the Calcutta High Court has considered the
same question. There the agreement pleaded was not proved but plaintiff wanted
to prove an antecedent agreement based on correspondence. It was held that the
plaintiff, in a suit for specific performance, 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:
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".
Ray (as he then was) in Md. Ziaul Haque vs. Calcutta Vyapar Pratisthan ([AIR
1966 Cal 605] referred to the special rule
applicable to suits for specific performance and also relied upon Hawkins vs. Maltby
 3 Ch.A.188. The learned judge observed;
Nil Kanta's case 19 C.W.N. 933 = AIR 1916 Cal 774, it was said that when a
plaintiff alleged a contract of which he sought specific performance and failed
to establish in the court would not make a decree for specific performance of a
different four specific performance of a different contract. Reliance was
placed on Hawkins vs. Maltby reported in  3 Ch.A. 188.
was rightly placed on the aspect of the plaintiff's case pleaded that there was
an agreement in the month of August and that the plaintiff failed to prove that
case and the plaintiff having completely abandoned that case of agreement in
the month of August, any attempt on behalf of the plaintiff to make recourse to
May agreement would be to have a decree for specific performance of an
agreement which was not the agreement of the parties according to the
special principles applicable to cases of specific performance can be also
gathered from standard works under the England Law, where the above English
cases and other cases have been cited.
Law of England (Vol 44, 4th Edn.1984) (Specific Performance, para 443) (f .n.1)
states, after referring to Pillage vs. Armitage [(1805) 12 Ves 78], that the
plaintiff having failed to prove an agreement which he had set up, was refused
specific performance of a different agreement admitted by the defendant cf . Legal
vs. Miller [(1750) 2 Ves. Sen. 299].
'Specific Performance' (6th Ed) (PP. 298-302) deals with the exact point in
issue before us. The another refers to four types of cases: (1) Where the
defendant admits the contract alleged; (2) Where the defendant denies the
contract as alleged and the plaintiff supports his case by one witness only;
(3) Where the defendant denies the contract as alleged and the evidence proves
a contract, but different from that alleged by the plaintiff; and (4) where the
defendant denies the contract as alleged and admits another contract.
assumption that plaintiff has proved an agreement at Bangalore on 28.4.84 (which question we shall
deal with under Point 4), it is obvious that we are here concerned with category,
Fry says (p. 299) (paras 634 to 638) as follows:
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 (Hawkins vs. Maltby L.R. 3 Ch.A. 188; the fresh bill was filed
(L.R. 6 Eq.505 and 4 Ch.200). The inclination of Lord Cottenham's mind seems to
have been to struggle with apparently conflicting evidence rather than to
dismiss the bill, where there had been part performance' (Mundy vs. Jollife 5 Myl.
Cr.p.167). In one case Turner L.J observed that there are cases in which the
court will go to a great extent in order to do justice between the parties when
possession has been taken, and there is an uncertainty about the terms of the
contract (East India Co. vs. Nuthumbadoo Veerasawmy Moodelly [7 Moo PCC p.482
at 497]). In the case of part performance, it is said, similar views were
expressed in the Privy Council by Sir William Erle (Oxford vs. Provand L.R. 2 P.C.135) as
respect to the supposed vagueness of the memorandum of agreement, their
Lordships propose to consider what is the true construction of that memorandum,
having regard to the terms of the instrument and, and to the surrounding
circumstances, and also in reference to this suit for specific performance,
and, to the conduct of the parties in the interval between the making of the
agreements and the commencement of the suit".
also refers to Hart vs. Hart (18 ch.D.670 at 685) in that context. The author
then refers to cases where the variation between the contract alleged and
proved is an immaterial variation and says that in such cases, the bill is
granted. He says (p. 301) that this is the position under the old practice of
the Court of Chancery but the High Court can permit amendment to put that
contract in issue; but "that if there was not (i.e.amendment), it will
generally give judgment for the defendant, without reserving any right to the
plaintiff to institute fresh proceedings. But the circumstances will govern the
discretion of the Court in each case which may arise".
above principles are, it is clear, special principles applicable to suits for
specific performance. The case before us does not fall within the exceptions
namely, - part performance or immaterial variations. Nor is it a case where the
plaintiff has agreed to amend his plaint. On the other hand, as already stated,
the plaintiff spurned the opportunity given to him by the High Court for
amendment of plaint. The case is in no way dissimilar to the cases in Gonesh
Ram vs. Ganpat Rai and to Mohd. Ziaul Jaque, referred to above.
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
to be specifically stated:
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 inconsistent 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]).
stated in Corpus Juris Secundum (Vol. 81A, Specific Performance) (Para 189) as follows:
accordance with general rules, the relief awarded in a suit for specific
performance would be based on the issues raised by the pleadings and supported
by the proof. More specifically, relief awarded for the plaintiff must be authorised
by or be in conformity with his pleading in respect of the contract to be
enforced and the parties thereto".
the 'general relief' in suits for specific performance it is stated:
accordance with the general rules and its qualifications and limitations where
the bill or complaint in a suit for specific performance contains a prayer for
general relief, the court may grant relief consistent with the facts pleaded
and proved and the court may in some cases grant or award partial relief."
In other words, other relief to be granted must be consistent with both
pleading and proof, in suits for specific performance. The principles stated
above under (a) and (b) appear to us to be the broad principles which are to be
borne in mind while dealing with exercise of discretion in cases of specific
performance. We decide Point 3 accordingly.
this point does not arise in view of the principles stated under Point 3. But
even so, as the counsel have made elaborate submissions we shall decide the
shall initially analyse the plaint averments and then examine the evidence
limited to the agreement dated 28.4.1984.
3 of the plaint it is stated, referring to 25.1.84 meeting of the parties at
Delhi, that 'the contract was also concluded', and that it was decided that the
registration should take place in June 1984.
plaint states :
correspondance which only confirmed that the defendants would execute the
registered sale deed.
plaintiff also received telegram addressed to Sri R.K. Kalyankar that the terms
of the agreement are acceptable and this was received on 4.4.1984. Further, the
3rd defendant also confirmed the terms of the agreement and wrote a letter to
the plaintiff on 11.4.1984.
to the Bangalore meeting the plaint merely stated as
defendants informed the plaintiff that the first defendant is purchasing a flat
in University Compound, Delhi and that he requires the amount and
that he would receive the entire amount at the time of executing the sale deed.
The defendant also said that the plaintiff 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".
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:
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 :
Specific performance of the agreement of sale concluded between the parties on
25.1.1984 and direct........."
Cost of this suit and such other reliefs as this Hon'ble Court may deem fit to grant in the circumstances of the
main difficulty for the plaintiff in this case is that he was thrown away the
opportunity granted by the High Court to amend the plaint for proof of an
agreement of sale dated 28.4.1984 and for specific performance of such an
agreement of sale dated 28.4.1984.
shall next deal with the evidence on this aspect.
senior counsel on both sides have referred us to the evidence adduced by the
parties in relation to the agreement dated 28.4.1984. PW 2 the person who was
corresponding and negotiating on behalf of plaintiff stated in his evidence-
"We did not get agreement on 28.4.1984 from the first defendant." He stated
in regard to the concluded agreement of 25.1.1984 as follows:
is not correct to say on 25.1.1984 no transaction (was settled) and sale price
was not settled".
already stated, this runs counter to the suit notice sent wherein it is
admitted that on 25.1.1984, Ist defendant said at Delhi that he has still to consult his
correspondance after 25.1.1984 on this aspect, as already stated, is very clear
that there is no concluded contract as on 25.1.1984.
as the plaintiff is concerned, as PW1 he says that the agreement is concluded
at Delhi on 25.1.1984 for Rs.5 lakhs and Ist
defendant "confirmed negotiation. I gave first defendant a rupee
coin". This version of giving a rupee coin at Delhi also shows that, even at the stage
of the evidence, PW 1 stuck to a case, of a concluded contract on 25.1.1984 at Delhi which is totally contrary to the
suit notice and the correspondance after 25.1.1984.
respect of the 28.4.1984 meeting at Bangalore, PW1 stated that the Ist
defendant was alone at Bangalore and they meet him and he said he had to
correct some question- papers from Andhra Pradesh and that he had to go to
Delhi urgently and that he asked the plaintiff "to come again in the
second week June 1984 and also he told that he would come to Shimoga to execute
registered deed. He told us to keep entire amount ready and there shall not
(be) give trouble". From the above evidence, it could not be said that
parties negotiated afresh at bangalore and
concluded any fresh agreement on 28.4.1984.
senior counsel for appellant relied upon a telegram dated 4.4.84 (Ex .P7) which
reads as follows:
acceptable. You come to Delhi for agreement, if unable,
inform" Ex. P5 letter dated 10.4.84 of Ist defendant to plaintiff stated that
he has received the letter of PW2 on 6.4.84 and it further states:
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".
next day 11.4.84, the 3rd defendant writes to PW1 Ex P6 dated 11.4.84 (produced
by plaintiff PW1) as follows:
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 Ist defendant shows that
plaintiff was in a dilemne whether to purchase this property or some other
property and that plaintiff and ist defendant should talk over the matter. This
letter would be inconsistent with there being any concluded contract by 4.4.84
when telegram Ex.P7 was issued by Ist defendant.
Ex.P6 would throw a doubt as to whether there was any concluded contract by
10.4.84 when Ex. P5 was written by Ist defendant. In fact, the argument before
us, on the contrary, was that there was a concluded agreement on 28.4.1984 when
Ist defendant came to Bangalore.This proceeds on the basis that there was no
concluded agreement before 28.4.1984.
doubt the High Court has stated that plaintiff and Ist defendant have not met
at Bangalore on 28.4.1984. This finding is wrong
as it does not take into account the other telegram of Ist defendant Ex. p8
dated 28.4.1984 about his arrival at Bangalore and the oral evidence. But from
what all PW1, PW2 stated as to what happened on 28.4.84, it appears to us that
there is no fresh agreement on 28.4.84 at Bangalore and that Ist defendant asked the plaintiff to come to Delhi.
argument has been advanced before us regarding Ex.P6 dated 11.4.84 which is an
inland letter by the 3rd defendant to plaintiff that it is not genuine. It
being an Inland letter bearing postal seals, we cannot accept the contention
that the letter is not genuine. There is no such evidence on plaintiff's side
nor any cross- examination of the 1st defendant.
argument was that in his evidence, 1st defendant admitted that he signed the
counsel has contended that this is with reference to Ex.P3 while Respondent's
counsel has submitted that this evidence of the 1st defendant has reference to
Ex.D11, the draft set up by Ist defendant for Rs.6.50 lakhs.
also been contended for respondents that there is no signature of 1st defendant
on Ex. P3.
the legal principles referred under Point 3 to the above facts it will be
noticed - even assuming that a contract dated 28.4.1984 at Bangalore is proved,
which in our view, is not proved - that this case does not fit into the
exceptions stated by Fry on Specific Performance inasmuch as this is not a case
where there has been part performance by delivery of possession. Nor can it be
said that the variation between pleading and proof is immaterial or
insignificant. Plaintiff has also refused to amend the plaint to seek relief on
the basis of an agreement dated 28.4.84, keeping the plaint as it is.
can this case be brought with the principles applicable 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.
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 on the basis of establishment
principles of equity, justice and fairplay". The High Court then stated:
party has to approach the Court with clean hands. The contract sought to be
enforced must be established. As the agreement pleaded by the plaintiff has not
been established, on Point No. 3, it is held that the plaintiff is not entitled
for a decree for specific performance." Having regard to the principles
laid down in Gonesh Ram's case [AIR 1924 Cal
461], Ziaul Haque's case [AIR 1966 Cal
605) Halsbury's Laws of England. Fry on Specific Performance and Corpus Juris Secundum
as set out under Point 3, we are unable to say that the discretion exercised by
the High Court in refusing specific performance is contrary to established
principles. Nor can we say that discretion has been exercised in a perverse
manner. Finally, we do not also think that this is a fit case for exercising
our jurisdiction under Article 136 of the Constitution of India.
appeal fails and is dismissed without costs.