PETITIONER:
SRINIVAS RAM KUMAR
Vs.
RESPONDENT:
MAHABIR PRASAD AND OTHERS.
DATE OF JUDGMENT:
09/02/1951
BENCH:
MUKHERJEA, B.K.
BENCH:
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 possi-
bly 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 defend-
ant'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.
JUDGMENT:
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 deliv-
ered 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 Septem-
ber, 1941, the defendants second party, who owned a house at
Gaya, entered into negotiations for sale of the same, with
one Jadu Ram, and the title deeds of the property were
actually handed over to the latter. These negotiations
failed and the second party defendants thereupon approached
the plaintiff firm and a contract was entered into by and
between them sometime towards the end of October, 1945,
under which the former agreed to sell to the latter their
house at Gaya for a consideration of 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 plain-
tiff in possession of the house agreed to be sold in part
performance of the contract and promised to execute a con-
veyance 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 de-
fendants, 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 con-
tract 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. de-
fendants who further pleaded that they were bona fide pur-
chasers 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, dis-
missed 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 estab-
lished 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 con-
tract. 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 evi-
dence 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 indefi-
nite, 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 af-
fected 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 circum-
stances, we see no reason whatsoever to go beyond the facts
which have been found against the appellant by both the
courts below.
As regards the other point, however, we are of the
opinion that the decision of the trial court was right and
that the High Court took an undoubtedly rigid and technical
view in reversing this part of the 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 noth-
ing 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 ques-
tion, 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 pronounce-
ment of the Judicial Committee in Babu Raja Mohan Manucha v.
Babu Manzoor (1). This appeal arose out of a suit commenced
by the plaintiff appellant to enforce a mortgage security.
The plea of the defendant was that the mortgage was void.
This
(1) 70 I.A. 1.
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 defend-
ants 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 conten-
tion is undoubtedly correct and is not disputed on behalf of
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 deter-
mined 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 reali-
sation. 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.
