Appeal No 4916 of 1991 From the Judgment and Order dated 541991 of the Alla habad High Court in Second Appeal No 3395 of 1978
Manoj Swarup and Ms Lalita Kohli for the Appellants
571 BS Nagar for Goodwill Indeevar for the Respondent
The Judgment of the Court was delivered by VENKATACHALIAH J
Special leave is granted and the appeal taken up for final hearing and disposed of by this judgment
We have heard Sri Manoj Swamp learned counsel for the Appellant and Shri Goodwill Indeevar for the Respondent
Appellant was Defendant in a suit for specific performance
He seeks special leave to appeal to this Court from the judgment and order dated 541991 of the High Court of Allahabad in Second Appeal No3395 of 1978 decreeing in reversal of the decrees of dismissal entered by the two courts below specific performance of an agreement for sale of land 3
On 371973 Respondent Natthu Singh sold Plot No195 measuring 5 bighas and 18 biswas and Plot No196 measuring 9 bighas and 8 biswas of Gulistapur Village Pargana Dadri to the appellant for a consideration of Rs 15000
On the very day ie 371973 another agreement was entered into between the parties whereunder Appellant agreed to reconvey the said properties to the Respondent against payment of Rs 15000 within two years
On 261975 well within the period of two years stipulated for the performance of the agreement to re sell Respondent instituted the suit for specific performance alleging that despite offer of performance and tendering the price Appel lant with the dishonest intention of appropriating the properties to himself refused reconveyance
The Appellant contested the suit principally on the ground that Respondent was never ready and willing to perform the contract and that Respondent himself was in breach
The trial court framed the necessary and relevant issues stemming from the pleadings and on its own apprecia tion of the evidence on record came to find against the Respondent that he was ready and willing to perform the contract and that the agreement being one of reconveyance time was of its essence
The suit was accordingly dismissed
Respondent s first appeal before the learned IInd Additional District Judge Bulandshahar was also unsuccessful
However in Respondent s second appeal the High Court reversed the findings of the two courts below and allowing the appeal held that Respondent Plaintiff was ready and willing to perform the contract that the Appellant was the party in breach and that therefore Respondent was entitled to a decree
This decree is assailed in this ap peal
572 6
Sri Manoj Swarup appearing in support of the appeal urged two contentions the first is that the High Court was in error in embarking upon a re appraisal of the evidence in a second appeal to distrub concurrent findings of fact that Respondent was not willing and ready to perform the con tract
The second contention is that contract itself became incapable of specific performance in view of the fact that during the pendency of second appeal the State had initiated proceedings for compulsory acquisition of the suit proper ties and the subject matter of the suit itself ceased to be available
Counsel says the power to give compensation as an alternative to specific performance did not extend to a case in which the relief of specific performance had itself become impossible
On the first question as to the readiness of the Respondent to perform his obligations the High Court no ticed that on 30th January 1974 even before institution of the suit Respondent and his brother had sold another proper ty belonging to them for a price of Rs 30000 and that Respondent had the necessary wherewithal to perform his part of the bargain
The High Court held 
Thus the plaintiff admittedly had re ceived Rs 15000 on 301
1974 and soon thereafter the first notice was issued to the defendant asking him to indicate a date for executing the saledeed and also expressing his readiness and willingness
There is no evi dence on the record that between 3011974 and the date of suit or thereafter the plaintiff had parted with this money
 The High Court also noticed that the two notices dated 233 1974 and 65
1975 respectively issued by the Respond ent to the Appellant before the suit contained the averments that he was ready and willing to perform the contract
The notices were no doubt not actually served on the appellant as they had come back unserved upon the alleged refusal by the appellant to accept them
The High Court relied upon the averments in the notices which could be treated as a part to the plaint having been referred to and relied upon therein
In our opinion the High Court was right in its view
The notices must be presumed to have been served as contemplated by Section 27 of the General Clauses Act
As to the jurisdiction of the High Court to reappreciate evi dence in a second appeal it is to be observed that where the findings by the Court of facts is vitiated by non considera tion of relevant evidence or by an essentially erroneous approach to the matter the High Court is not precluded from recording proper findings
We find no substance in the first contention
573 9
The second contention is however not without its interesting aspects
During the pendency of the second appeal the properties were acquired by the State for a public purpose
This is not disputed
It would appear that a compensation of Rs 4 lakhs or thereabouts has been deter mined
That sum along with the generous solatium and the rates of interest provided by the statute would now be a much larger amount
Before the High Court Appellant sought to rely upon the decision of this Court in Piarey Lal vs Hori Lal 1977 2 SCR 915
That was a case where in proceedings of consolidation the subject matter of an agree ment to sell was allotted to a person other than the vendor the relief of specific performance was held not to survive
The High Court rightly held that pronouncement was distin guishable and inapplicable to the present controversy
As to the relief available to a plaintiff where the subject matter was acquired during the pendency of a suit for specific performance the High Court said 
The learned counsel for the respondent has vehemently urged that after the land has been acquired its corpus has ceased to exist and no decree for specific performance can now be granted
In my opinion with the acquisition ofthe land plaintiffs rights do not get extinguished in totality
The appellate court always suitably mould the relief which the circumstances of the case may require or permit
The power in this regard is ample and wide enough
However in the present case the property has not been totally lost
What happens in the case of the acquisition is that for the property compensation payable in lieu there of is substituted  The High Court issued these consequential directions If the decree for specific performance of contract in question is found incapable of being executed due to acquisition of subject land the decree shall stand suitably substi tuted by a decree for realisation of compensa tion payable in lieu thereof as may be or have been determined under the relevant Act and the plaintiff shall have a right to recover such compensation together with solatium and inter est due thereon
The plaintiff shall have a right to recover it from the defendant if the defendant has already realised these amounts and in that event  the defendant shall be further liable to pay interest at the rate 574 of twelve per cent from the date of realisa tion by him to the date of payment on the entire amount realised in respect of the disputed land
 We are afraid the approach of the High Court is perhaps somewhat an over simplification of an otherwise difficult area of law as to the nature of relief available to a plain tiff where the contract becomes impossible of specific performance and where there is no alternative prayer for compensation in lieu or substitution of specific perform ance
While the solution that has commended itself to the High Court might appear essentially just or equitable there are certain problems both of procedure and of substance in the administration of the law of specific relief particular ly in the area of award of an alternative relief in lieu or substitute of specific performance that require and compel consideration especially in view of some pronouncements of the High Courts which have not perceived with precision the nice distinctions between this branch of the law as adminis tered in England and in India
Section 21 of the corre sponding to Section 19 of 1877 Act enables the plaintiff in a suit for specific performance also to claim compensation for its breach either in addition to or in substitution of such performance
Sub sections 2 4 and 5 of Section 21 are material and they provide 2
If in any such suit the Court decides that specif ic performance ought not to be granted but that there is a contract between the parties which has been broken by the defendant and that the plaintiff is entitled to compensa tion for that breach it shall award his such compensation accordingly
3  Omitted as unnecessary 4 In determining the amount of any compensation awarded under this section the Court shall be guided by the princi ples specified in Section 73 of the  9 of 1872
5 No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint Provided that where the plaintiff has not claimed any such compensation in the plaint the Court shall at any stage of the proceeding allow him to amend the plaint on such terms as may be just for including a claim for such compensation
Explanation The circumstance that the contract has become 575 incapable of specific performance does not preclude the Court from exercising the jurisdiction conferred by this section emphasis added So far as the proviso to sub section 5 is concerned two positions must be kept clearly distinguished
If the amendment relates to the relief of compensation in lieu of or in addition to specific performance where the plaintiff has not abandoned his relief of specific performance the court will allow the amendment at any stage of the proceed ing
That is a claim for compensation failing under Secion 21 of the and the amendment is one under the proviso to sub section 5
But different and less liberal standards apply if what is sought by the amend ment is the Conversion of a suit for specific performance into one for damages for breach of contract in which case Section 73 of the Contract Act is invoked
This amendment is under the discipline of Rule 17 Order 6 CPC The fact that sub section 4 in turn invokes Section 73 of the for the principles of quantification and assessment of compensation does not obliterate this distinc tion
The provisions of Section 21 seem to resolve certain divergencies of judicial opinion in the High Courts on some aspects of the jurisdiction to award of compensation
Sub section 5 seeks to set at rest the divergence of judicial opinion between High Courts whether a specific claim in the plaint is necessary to grant the compensation
In England Lord Cairn s Chancery Amendment Act 1858 sought to confer jurisdiction upon the Equity Courts to award damages in substitution or in addition to specific performance
This became necessary in view of the earlier dichotomy in the jurisdiction between common law and Equity Courts in the matter of choice of the nature of remedies for breach
In common law the remedy for breach of a contract was damages
The Equity Court innovated the remedy of specific perform ance because the remedy of damages was found to be an inade quate remedy
Lord Cairn s Act 1858 conferred jurisdiction upon the Equity Courts to award damages also so that both the reliefs could be administered by one court
Section 2 of the Act provided In all cases in which the Court of Chancery has jurisdiction to entertain an application for specific performance of any covenant contract or agreement it shall be lawful for the same Court if it shall think fit to award damages to the party injured either in addi tion to or in substitution for such specific performance and such damages may be assessed as the Court shall direct
 576 This is the historical background to the provisions of Section 21 of the and its prede cessor in Section 19 of the 1877 Act
In Mohamad Abdul Jabbar  Others vs Lalmia Others
AIR 34 1947 Nagpur 254 specific performance of an agree ment of sale dated 16th January 1934 was sought by the institution of a suit on 15th January 1937
During the pendency of the suit on 20th April 1937 the provincial Government started land acquisition proceedings respecting the subject matter of the suit and the same was acquired
The High Court upheld the dismissal of the suit for specific performance and referred an amendment for award of damages
On the obvious impermissibility of specific performance the Nagpur High Court said We accordingly conclude that specific per formance is now impossible and we cannot decree it for equity like nature does nothing in vain
 We cannot hold the plaintiffs appel lants entitled to the compensation money into which the property was converted because they had no right or interest in that property  Refusing the amendment for the relief for payment of money the High Court held We would not allow amendment also because on the facts found by the trial Court with which we see no reason whatever to differ we would have refused specific performance and the claim for damages on this account would also have been negatived because damages could have been awarded only if specific performance could rightly have been claimed
The appeal therefore fails and is dismissed with costs llm0
Support for these conclusions was sought from the oft quoted but perhaps a little misunderstood case of Ardeshir H Mama vs Flora Sassoon AIR 1928 Privy Council 208
The passage in Sassoon s case relied upon by the Nagpur High Court is this In a series of decisions it was consistently held that just as its power to give damages additional was to be exercised in a suit in which the Court had granted specific perform ance so the power to give damages as an alternative to specific performance did not extend to a case in which the plaintiff had debarred himself from claiming that form of relief nor to a case in which that relief had become impossible
577 The case of 52 Bombay 597 fell within the first category of cases described above under the alternative relief of damages
This case fails within the second part where the relief of specific performance has become impossible emphasis supplied The second part of the observation of the Nagpur High Court with great respect to the learned Judges proceeds on a fallacy resulting from the non perception of the specific departure in the Indian law
In Lord Cairn s Act
1858 damages could not be awarded when the contract had for whatever reason become incapable of specific performance
But under the Indian law the explanation makes a specific departure and the jurisdiction to award damages remains unaffected by the fact that without any fault of the plain tiff the contract becomes incapable of specific perform ance
Indeed Sassoon s case is not susceptible of the import attributed to it by the Nagpur High Court
Sassoon s case itself indicated the departure made in Indian Law by the Explanation in Section 19 of the 1877 Act which is the same as the Explanation to Section 21 of the 1963 Act
The Judicial Committee no doubt said that Section 19 of the 1877 Act embodies the same principle as Lord Cairn s Act and does not any more than did the English Statute enable the court in a specific performance suit to award compensa tion for its breach  where at the hearing the plaintiff debarred himself by his own action from asking for a specif ic decree  But what was overlooked was this observation of Lord Blanesburgh except as the case provided for in the expla nation us 10 which there is introduced an express divergence from Lord Cairn s Act as expanded in England emphasis supplied  Indeed the following illustration of the Explanation appended to Section 19 of makes the position clear Of the Explanation A a purchaser sues B his vendor for specific performance of a contract for the sale of a patent
Before the hearing of the suit the patent expires
The Court may award A compensation for the non performance of the contract and may if necessary amend the plaint for that purpose When the plaintiff by his option has made specific performance impossible Section 21 does not entitle him to seek damages
That position is common to both Section 2 of Lord Cairn s Act 1858 and Section 21 of the 
But in Indian Law where the contract 578 for no fault of the plaintiff becomes impossible of per formance section 21 enables award of compensation in lieu and substitution of specific performance
We therefore hold that the second contention of Sri Manoj Swarup is not substantial either
Learned counsel were not specific on the point whether the Respondent had actually asked for compensation in lieu of specific performance
We may assume that it was not so specifically sought
In order that formality in this behalf be completed we permit the amendment here and now so that complete justice is done
The measure of the compensation is by the standards of Section 73 of the Indian Contract
Here again the English Rule in Bain vs Fothergill 1874 LR 7 House of Lords 158 that the purchaser on breach of the contract cannot recover for the loss of his bargain is not applicable
In Pollock  Mulla on Contract 10th Edn the law on the matter is set out thus  Where therefore a purchaser of land claims damages for the loss of his bargain the question to be decided is whether the damages alleged to have been caused to him naturally arose in the Usual course of things from such breach  and in an ordinary case it would be difficult to hold otherwise p 663 Learned Authors adopt the following observation of Farran CJ in Nagardas vs Ahmedkhan  The Legislature has not prescribed a differ ent measure of damages in the case of con tracts dealing with land from that laid down in the case of contracts relating to commodi ties In the present case there is no difficulty in assessing the quantum of the compensation
That is ascertainable with reference to the determination of the market value in the land acquisition proceedings
The compensation awarded may safely be taken to be the measure of damages subject of course to the deduction therefrom of money value of the services time and energy expended by the appellant in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award
We accordingly confirm the finding of the High Court that Respondent was willing and ready to perform the con tract and that it was the 579 Appellant who was in breach
However in substitution of the decree for specific performance we make a decree for compensation equivalent to the amount of the land acquisi tion compensation awarded for the suit lands together with solatium and accrued interest less a sum of Rs150000 one lakh fifty thousand only which by a rough and ready estimate we quantify as the amount to be paid to the appel lant in respect of his services time and money expended in pursuing the legal claims for compensation
We may here notice one other submission of Sri Manoj Swarup
He found fault with the operative part of the judg ment of the High Court Which according to Sri Manoj Swa rup had not even provided for the payment to the appellant of Rs 15000 the stipulated consideration for reconveyance
There is this apparent omission in the operative part of the High Court s judgment
But this is only a technicality
The operative part granting relief should be read with the relevant prayers in the plaint itself
But that is not of any practical significance here in as much as we have also taken this amount of Rs 15000 into account in somewhat generously quantifying the litigation expenses at Rs 150000 as payable to the appellant out of the sums awarded for the acquisition
Therefore there is no need for Re spondent to pay the sum of Rs 15000 additionally
In the result there will be a decree awarding 10 the Respondent compensation in lieu and substitution of one for specific performance which but for the acquisition Respond ent would have been entitled to the quantum and the measure of the compensation being take entire amount of compensation determined for take acquisition of the suit
properties to gather with all the solatium accrued interest and all other payments under the law authorising the acquisition less a sum of Rs 150000 Rupees one lakh fifty thousand only which shall go to the Appellant towards his services time and amounts spent in pursuing the claims for compensa tion as well as the consideration stipulated for reconvey ance 
The sum of Rs150000 is allowed to be paid to the Appellant on his assurance that he has not received any part of the compensation earlier
If any amount has been received by the Appellant out of compensation awarded for the acqui sition such sums shall go in reduction of the sum of Rs150000 the difference being for the benefit of and be paid to the Respondent additionally
This order shall be sufficient authority for the land acquistion authorities or the Courts wherever the matter may be pending for the apportionment and payment of the compen sation for the acquisition of the suit 580 property between the Appellant and the Respondent in the manner indicated above
These directions shall of course not affect or prejudice the claim of other claimants if any whose claims are to be determined in the said land acquistion proceedings the assumption implicit in this apportionment being
that there are no other claimants in the land acquisition proceedings
If such apportionment and withdrawal is not possible the decree in terms of this judgment shall be worked out in execution proceedings
The decree under appeal is modified accordingly
No costs
TNA Decree modified


Summary:
These matters relate to admission in post graduate courses in the Medical Colleges in Uttar Pradesh
On a Writ Petition which later turned out to be fake the High Court had ordered that admission could be effected on the basis of the MBBS Examination
This has been disputed in appeal before this Court
In another Writ Petition pending hearing the High Court directed that provisional admission be given to two candidates one in MS Surgery and another in MD Medicine
The Principal of the Medical college and others preferred an appeal against the High Court s order
It was contended that granting admission though provi sional at an interlocutory stage in a pending proceeding creates a lot of adverse consequences and indiscipline in the system of imparting education
Dismissing the matters this Court 385 HELD 11 It transpires that the proceedings before the High Court were totally fraudulent and no one by the name given in the petition as petitioner could really be identi fied
This Court had clearly indicated that no admission should be permitted on the basis of the MBBS results
Noth ing survives now as the High Court s order has already been reversed
386 FG 21 It is already settled that admission for 25 per cent of the seats in post graduate courses should be regulated on the basis of all India selection and in regard to the re mainder of 75 per cent the States were left to decide the procedure for admission
387 E 22 Unless there is a sincere and thorough educational discipline to be gone through as a precondition to the grant of the requisite certificate the lives of citizens would be at peril
The Indian Medical Council has prescribed a rea sonable period of study on expert advice and upon taking into consideration the experience over the years as to how much study is necessary for the requisite qualification to be gathered
This Court has also indicated the dates of admission and commencement of the courses of study
These are prescriptions for a purpose and are not intended to be empty formalities to be violated
387 G H 388 A Dr Pradeep Jain  Ors
vs Union of India  Ors
 1984 3 SCC 654 relied on
It is a well known rule of practice and procedure that at an interlocutory stage a relief which is asked for and is available at the disposal of the matter is not generally granted
To have it granted at the threshold creates a lot of difficulties
In a case where the petition er ultimately loses in a case of this type a very embarrass ing situation crops up
If he has by then read for two to three years there is a claim of equity raised on the plea that one cannot reverse the course of time
In a case of this type equities should not be claimed or granted
Unless there is any special reason to be indicated in clear terms in an interlocutory order as a rule no provisional admis sion should be granted and more so into technical courses
388 C D 41 The order of the High Court in the instant case should be reversed but this is not being done so on account of the fact that nine similarly placed medical graduates have already been given admission pursuant to such interloc utory orders by the respondents 386 without even raising a challenge
The order was made as early as in February 1991 and for nine months no steps have been taken by the appellants to comply with the order and they are in fact facing a contempt proceeding
388 F 42 Notice had been issued to the Principals of the seven medi cal colleges who have appeared and given written undertakings to the Court by way of affidavit that there was some misunderstanding in regard to the requirement of a selection test for post graduate admission
Though there was hardly any scope for being misled the benefit of doubt is being given to the Principals
The contempt proceedings are discharged but their undertakings are kept on record
388 G H 389 A