JUDGMENT
A. Raman, J.
1. This appeal is preferred by the plaintiff, who lost his case in the lower appellate court. The suit was filed by the plaintiff for specific performance of the agreement dated 8.10.1970 on the following allegations. The defendant agreed to sell the property to the plaintiff for a consideration of Rs. 31,000 and an agreement was executed between the parties on 8.10.1979 and an advance of Rs. 22,000 was paid on that date. The possession was also handed over to the plaintiff. As per the condition of the agreement, the defendant has to obtain permission from the Urban Land Ceiling Authority. The defendant has to produce the No Encumbrance Certificate as well. The sale was to be executed within two months from the date of permission. The defendant has produced the application for permission to sell and it was signed by the plaintiff. It was submitted to the authority. The defendant thereafter did not come forward to execute the sale deed. The defendant did not carry out the terms of the agreement. The plaintiff’s approach and attempt failed. The plaintiff has deposited Rs. 9,000 in U.C.O. Bank, Pondichery. The defendant is evading to execute the sale deed. The plaintiff understands that the defendant is negotiate to sell the properties to some 3rd parties. Hence the plaintiff caused publications in the newspapers. The plaintiff also submitted letters of objections to the concerned Sub-Registrar. The plaintiff gave a notice through his lawyer on 25.1.1981, expressing his willingness and readiness to purchase the property and calling upon the defendant to execute the same. Though the defendant received the notice, but she did not reply. Hence this suit.
2. The defendant contended as follows:-Originally there was an agreement to sell the property in the year 1978 for a sum of Rs. 34,000 and the plaintiff paid an advance of Rs. 10,000 for discharging the mortgage over the property. Subsequently on various dates till 8.10.1979, when the second agreement was entered into, a sum of Rs. 12,000 was paid and thus in all Rs. 22,000 was paid by the plaintiff. The defendant agreed to obtain No Objection Certificate from the Urban Land Ceiling Authority and in fact an application was submitted in the month of October, 1979, but the authority did not grant permission for the sale. The plaintiff is aware of the same.’ As the permission was not given, the defendant could not perform the contract.
3. The Government has acquired a portion of the property namely 10 Are. and 10 Centiares in Survey No. 1168/2. The plaintiff, on coming to know of the same, asked the defendant for the return of advance amount and the defendant agreed to pay the same in two instalments. Later, he went back on the agreement and issued notice on 25.1.1981. The defendant could not perform her part of the contract without permission of the Competent Authority and due to act of State, the defendant is prepared to pay back the advanced.
4. Before the Second Additional Sub Judge, Pondicherry the plaintiff examined P.Ws. 1 to 3 and Exs. A-1 to A-15 were marked. On the side of the defendant, five witnesses were examined while Ex. D1 to D-4 were marked. The learned Second Additional Sub Judge, Pondicherry decreed the suit. The defendant preferred an appeal in the High Court in A.S. No. 856 of 1982. A learned Single Judge of this Court, by judgment dated 27.9.1994, allowed the appeal and dismissed the suit. Thus the present appeal.
5. The points that arise for determination are:
(1) Whether the plaintiff is entitled to specific performance of the agreement?
(2) Whether the contract become impossible of performance?
THE POINTS : The execution of the agreement of sale, which is marked as Ex. A-1 is not disputed. The fact remains that there was already an agreement of sale between the parties. The said agreement came into existence on 9.12.1978 whereby the defendant agreed to sell the property for Rs. 34,000 and on that date, a sum of Rs. 10,000 was paid by the plaintiff as advance. Subsequently, there was a request by the plaintiff for reducing the consideration of the sale, with the result, subsequent agreement viz., the suit agreement dated 8.10.1979 came to be executed for a consideration of Rs. 31,000. That totally, a sum of Rs. 22,000 was paid by the plaintiff and received by the defendant is also not disputed. But strangely, now the plaintiff has not chosen to refer to the earlier agreement. The plaint proceeds as though there is only one agreement between parties and that was on 8.10.1979.
6. The notice was issued by the plaintiff on 25.1.1981. The plaint was actually presented into the Court on 6.2.1981. The notice was issued to the defendant for the hearing on 31.3.1981. The particulars are not available in the record to show as to when the defendant entered appearance. But the fact remains that the defendant filed her written statement in the Court on 10.7.1981.
7. The above aspect assumes some importance because of the fact that in the plaint it is specifically alleged that the defendant failed to obtain permission. The fact that the defendant submitted an application to the authority is admitted in the plaint. But the plaint proceeds to state that the defendant neglected and failed to obtain the necessary permission and thus did not carry out the terms of the agreement. While that is the plaintiff’s case, in his evidence he states that he received the letter of permission which is marked as Ex. A-2 in this case, a year before his examination in the Court which was on 19.3.1982. If really, he received such a letter of permission a year prior to his examination, it is not explained as to why the plaintiff has not chosen to seek an amendment of the plaint suitably or file a reply statement to that effect when the defendant has specifically taken his stand in her written statement filed on 10.7.1981, that permission was not granted, though applied for. Therefore, the evidence of P.W.I in the chief examination is to the effect that he obtained permission in March, 1981. In the course of cross examination, he admits that he did not receive Ex. A-2 and that he received Ex. A-2 within two months after the filing of the suit. Even then, it would take us to the month of April, 1991, by that time, the defendant has neither entered appearance not filed any statement. When in July, 1981, she filed the written statement, she had categorically stated that permission was not granted. The plaintiff, who claims to have received permission in the month of April, 1981, has neither chosen to seek an amendment of the plaint or file a reply statement. It is not explained by him as to how he came to know that permission was not granted till the filing of the suit and he was pleading that permission was not obtained. While so, how he came to know that permission was granted, after filing of the suit? and what prompted him to go to the concerned office and receive the order? These questions are not answered. The source of information is not spoken to by him in his evidence. The permission that is produced into court and marked as Ex. A-2 is soaked in mystery. It is seen from the order that the copy has been marked to the defendant. There is nothing to show that any such order copy was marked and communicated to the defendant. It is also to be pointed out that there is no reference to the plaintiff in the order on what authority it came to be handed over to him. He is a third party, for, it is not his evidence that any authority or authorisation was given by the defendant. There is intrinsic evidence available to show that all is not well with the permission. This permission has been produced into Court on 18.10.1981. If really within a month or two of the filing of the suit, it was received by him, there is no reason why he could not file the same into Court immediately, it being an important document. The defendant has obtained xerox copy of the permission, and it is marked as Ex. A-10. A comparison of the same would show that while Ex. A-2 contains an initial for the correction in the year 1980, there is no such initial found in the xerox copy. From the record, it is seen that this Ex. A-2 was not available for some time and had to be traced out. The suggestion made to D.W. 1 is that the document Ex. A-2 was missing from the bundle from 18.11.1981 and it was replaced only on 19.3.1982, that the document was taken by the plaintiff without permission of the Court and thus correction has been obtained. In the course of cross-examination P.W. 1 states that he approached the authority and got Ex. A-2 after the filing of the written statement. But, in course of chief examination as well as in cross examination he has specifically stated that the permission was granted some time in April, 1981, viz., after the filing of the suit, whereas in the course of the cross-examination again he has stated that he obtained it after filing, of the written statement. D.W. 3, who is the Tahsildar, has stated that as per the record, permission was granted on 15.7.1980. He further admits that the Deputy Collector has not attested the correction. It is also in evidence that they used to grant permission within two months from the date of application. He has also stated that the original order had been sent either by post or in person to the applicant. D.W. 4 is the Deputy Collector-cum-Competent Authority. He states that the normal procedure is that if there is any correction, the Competent Authority has to put his initials. It is also admitted that if correction has to be made, order is despatched after such correction and after the despatch of the order, if any correction is to be made, the same may be corrected by the Competent Authority on the basis of application. Here, the case of P.W. 1 is that after he received the copy of the order, he came to know about the mistake and went and got it corrected just across the table. P.W. 5 was the Tahsiidar at the Deputy Collector’s Office. He admits that he is not aware of what had happened to that and that he has initialled the alteration. He admits Ex. A-10. There is no initial for the correction. He admits there is no signature of Rajakumari though he said the order was despatched to the defendant on 15.7.1980. There is no record to prove the same. Thus we find that the plaintiff has not come to Court with clean hands. He omitted to mention about the first agreement and the cancellation of the same. From the records, it is clear that permission was granted in pursuance of an earlier agreement and no permission was sought for after the agreement dated 8.10.1979 was entered into. But, yet the plaintiff would boldly allege in the plaint that in pursuance of the agreement dated 8.10.1979, he counter-signed the application of the defendant and it was submitted to the Competent Authority. It is admitted by him that in none of the applications filed in the suit, he has stated that permission was granted on 18.1.1980 or during 1981, as the case may be. In Ex. A-2 on the top right hand comer we find the correction in the numeral of the year given. Originally the figure is 81; it has been corrected as 80, to show that permission was granted on 14.10.1980. If really the permission was granted in 1980, there is no reason why it was received by the plaintiff only after filing the suit. In Ex. A-10 xerox copy of the permission Ex. A-2, we do not find any initial of the officer for the correction. D.W. 1 admits that after he got the order, which was after the filing of the written statement by defendant, and then on the advice of the Advocate, he went to have the date corrected. But the evidence of D.W. 3 to D.W. 5 is that if any correction is made after despatch, there must be an application, for, that the correction can be by the authority concerned and it cannot be initialled by the Deputy Tahsildar. No explanation was given for the mistake in the Rubber Stamp, i.e., how the mistake in the year, has come about. It is not necessary to change the year in the Rubber Stamp and only the date and the month in the seal has to be changed every day and every month. If it is stated that the mistake is due to use of Rubber stamp and the case of the defendant and the order was passed on 15.7.1980 is true, then there was absolutely no possibility for an mistake in the year, for more than six months have passed in that year; if any order is passed in July, 1980, there will not be any necessity to change the year as 1981. If the order had been passed on 15th December, perhaps this contention can be urged. Therefore, the explanation about the use of rubber stamp is quite childish. An analysis clearly shows that the initial of the order by D.W. 5 is unauthorised. Therefore it is clear that the plaintiff is guilty, of fraud suppression and mis-representation. He has gone to the extent of altering the dates in the document. A person who comes to the Court seeking equitable relief has to come with clean hands. But, an analysis of the evidence of D.W. 3 to 5 and the staring correction in Ex. A-2 would show that the plaintiff is guilty of fraud and therefore he is not entitled to ask for specific performance of the agreement.
8. Even otherwise, it has to be seen that the agreement cannot be complied with. It is not only admitted by P.W. 1 plaintiff and also by D.Ws. 3 to 5 that a major portion of the property agreed to be sold has been acquired by the Government. In fact, the plaintiff himself filed a writ petition challenging the same, in W.P. No. 10945 of 1991. Therefore, the contract has become impossible of performance. In fact the extent to which the plaintiff has chosen to go will be evident from this. The original order in manuscript runs as follows:
The said land has been notified for acquisition for public purpose and the permission is granted without prejudice to acquisition proceedings.
There is a further sentence added to that. It is found struck-off in the order. It is also seen that during the pendency of the appeal, the Government acquired some more properties which are the subject matter of the agreement and thus, as on date, a major portion of the suit property has been acquired by the Government. Therefore, it is clear that the agreement has become impossible of performance. In fact, the defendant states that on coming to know that the property has been acquired, the plaintiff was not interested in the purchase and demanded the due return of the amount. It is categorically admitted by P.W. 1 when he states as follows:
It may be possible, I have not stated in the plaint that the defendant asked me to vacate receiving Rs. 10,000 from the defendant. I have stated in evidence.
The defendant has examined D.W. 2 Ilapooranam in whose presence, according to the defendant it has taken place.
9. The relief being inequitable relief, when the plaintiff has not come with clean hands and had gone to the extent of altering the date in the order, namely, a crucial document, it follows that the plaintiff is not entitled to specific performance.
10. Hence, in this case, the plaintiff has suppressed the fact that the original agreement was cancelled and a fresh agreement came into existence, between the parties. He has also suppressed the fact of filing of application for permission which was submitted in pursuance of the original agreement. Falsely, he would contend that in pursuance of the said agreement, permission was asked for and submitted an application. He has chosen to alter the order and had resorted to subterfuge. Therefore as held in the decision reported in Y.A. Kader v. Muthulakshmiammal .
When the purchaser makes material alternation the relief being equitable, the plaintiff cannot ask for specific relief.
11. In the decision reported in Nallaya Gounder v. P. Ramasami Gounder it was held as follows:
When the plaintiff has put forward a foisted case and comes to the court with unclean hands, he is not entitled to grant of equitable relief.
12. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss and it is cheating intended to get an advantage. That is what the plaintiff herein is guilty of.
13. In Bhanwar Singh v. Raghubhir Narwa Singh had an occasion to consider the scope of Section 12(3)(a) and (b) of the Specific Relief Act and held as follows:
The words “unable to perform” in Section 12(3) suggests that the Sub-Section is applicable only when the party cannot for any reason perform the whole of what he has promised. The inability may arise by any cause whatsoever including statutory limitations.
The inability to perform may arise by-
(i) deficiency in quantity of the subject matter; or
(ii) Variance in quality; or
(iii) defect in title; or
(iv) defect in prohibition; or
(v) other causes.
The expression “considerable part” implies that the part which will be left unperformed is either large as regards quantity or as regards quality. In other words, it is material and not insignificant, so that a reasonable objection can be taken by the promise to accept performance. The phrase “does not admit of compensation” implies that there are no data for ascertaining a fair and reasonable amount as the money value of the difference between what can be performed and the express subject matter of the contract. The amount need not be mathematically accurate. If a reasonable estimate of the amount as the money value can be made, it will not be a case where the compensation is unascertainable.
The facts of the case would fit in with the above ruling, In such context the Section 12 of the Specific Relief Act makes it clear that except as otherwise provided in this Section, the Court shall not direct the specific performance of a part of a contract.
14. The learned senior counsel for the appellant submitted that under Section 27 of the Urban Land (Ceilings and Regulations) Act, 1976, within a period of 60 days, if the authority does not refuse to grant permission or does not negative the request of the applicant, the Competent Authority shall be deemed to have granted permission. It is also necessary in this context to refer the decisions reported in Kanshi Ram v. Om Prakash Jawal and Ors. (1996) 1 L.W. 749 : (1996) 2 M.L.J. 80 (S.C.) and Lakshmiammal and Anr. v. S. Sengamalai (1996) 1 L.W. 785 which are to the effect that if there is suppression in pleading and averment, the relief of specific performance has to be declined. The relief of specific performance has to be negatived when the plaintiff has not come to Court with clean hands.
15. In this case, admittedly the advance of Rs. 10,000 was paid under the earlier agreement and not under the later agreement.
16. The plaintiff has also omitted to mention the earlier agreement and suppressed the same in the latter agreement.
17. Therefore the plaintiff cannot seek specific performance of the agreement of sale since he is not entitled to the same, by reason of the fact that he is guilty of suppression of truth.
18. The learned Senior counsel for the appellant contended that under the provisions of the Urban Land (Ceilings and Regulations) Act which is applicable to Pondicherry, when the application has not been rejected within the time provided, it must be taken as granted. Therefore, on such basis, the plaintiff is entitled to the relief of specific performance. This argument overlooks the fact that no application was filed based on the agreement and that the agreement specifically states that permission has to be obtained in pursuance of the agreement. The application filed was not in pursuance of this suit agreement.
19. The plaintiff has only stated that he signed the application form produced by the defendant and he has suppressed the fact that the application form signed by him was not with reference to the suit agreement. Therefore the contention that permission must be deemed to have been granted will not arise because there was no application at all, seeking permission.
20. The other argument advanced by the learned Counsel for the appellant/plaintiff is that the permission granted, even though was under the earlier agreement, it would ensure to the benefit of the suit transaction. But the plaintiff has not chosen to come to court with specific pleading, that though an application was not filed under the suit agreement, the earlier application was treated or is to be treated as one filed in pursuance of the suit agreement and therefore he is entitled to the relief. Neither in his evidence nor in the pleadings, such an alternative case has been put forward.
21. Learned Senior Advocate Mr. Masilamani appearing for the appellant would again submit that even though there is an acquisition proceeding, the plaintiff is prepared to buy whatever is left over all such acquisition and that the plaintiff would be entitled to make a claim for the compensation for the extent acquired. Such an argument is not available to the plaintiff. Section 12(c) makes it clear that when the contract becomes either wholly or partly incapable of performance, specific performance cannot be ordered by the Court. The plaintiff was aware of the acquisition proceedings at the time when he filed the suit. A part of the property was acquired during the pendency of the appeal and some more portion of the property was acquired subsequently with the result, now the property available is about half of the originally agreed property to be sold. Therefore, the contract has to be held as one impossible of performance by reason of the acquisition proceeding. Moreover, it is not mentioned in the agreement about the proposed land acquisition. In fact, from the evidence available, we can infer that even on the date when plaintiff filed the suit he was aware of the land acquisition proceedings. In spite of it, he has not chosen to make a proper pleading to the effect that in the alternative he is prepared to buy the property whatever that is made available to him, after the acquisition proceedings, and for the same price. This Court cannot bring about a new contract or substitute it with a different one not agreed to by the partners.
22. Therefore, such an argument is also not available for plaintiff. Therefore a new contract cannot be brought out, without the defendant being a party to such a contract, which is quite different from one he entered into originally with the defendant. Therefore, this argument is also not acceptable. Hence we are of the opinion that the judgment of the learned single Judge is a well considered one. The learned single Judge has taken into account the entire materials placed before the Court by the parties and after a thorough discussion, has chosen to accept the appeal and dismiss the suit. We do not find any infirmity in the judgment of the learned single Judge so as to differ from him. Hence, the points are answered accordingly against the plaintiff and in favour of the defendant.
In the result, the appeal is dismissed confirming the judgment of the learned Single Judge. No costs. The suit shall stand accordingly dismissed with costs.