Appeal No 4145 of 1984
From the Judgment and Order dated 1421984 of the Punjab and Haryana High Court in Regular Second Appeal No 1498 of 1982
Ravi Parkash Gupta Arvind Varma Bahar Burqui and Gopal Subramaniam for the Appellant
RF Nariman Ms Madhvi Gupta and Ashok K Gupta for the Respondent
The Judgment of the Court was delivered by KN SAIKIA J
This plaintiff s appeal by special leave is from the judgment and order dated 1421984 of the High Court of Punjab and Haryana in Regular Second Appeal No 1498 of 1982 modifying those of the courts below and pass ing a decree for Rs5000 only by way of refund of earnest money instead of decree for specific performance
The appellant herein as plaintiff filed Civil Suit Nos
195196 of 1973 averring inter alia that she had entered into an agreement dated 169
1971 with the respondent defendant for purchase of property No B VII 7 old and B VIII 9 new containing 2 Kohlus of 20 HP electric motor etc
for a consideration of Rs50000 and also had paid to the defendant an earnest money of Rs5000 that the proper ty was jointly owned by the defendant with her step mother in law Smt
Lajwanti who would also join the execution of the sale deed that if Smt
Lajwanti failed to do so the respondent defendant would sell her half share of the property for half of the sale price that the 352 defendant respondent pursuant to the agreement delivered possession of her share of the property to the plaintiff appellant whereafter the plaintiff repaired the property spending Rs4200 that thereafter the partition was also effected between the defendant respondent and Smt
Lajwanti that the defendant thereafter illegally took possession of the property from the plaintiff appellant and refused to execute the sale deed in terms of the agreement dated 1691971 on or before September 26 1971 as stipulated that as arbitration proceedings between defendant and her co sharer Smt
Lajwanti was going on the defendant took back the said agreement styled as receipt and thereafter re fused to execute the stipulated sale deed and in response to the plaintiff s lawyer s notice dated 2371971 the defend ant took the false plea that the agreement did not pertain to the building but only to the machinery fitted therein
The relief prayed was a decree for specific performance of the contract in the alternative a decree for a total sum of Rs 16000 including the earnest money of Rs 5000
The defendant respondent contested the suit on the inter alia pleas that the agreement being not scribed on a proper stamped paper was not permissible in evidence that it was only a paper transaction executed to pressurise her co sharer Smt
Lajwanti that no earnest money was paid that in any case the document related only to the moveable property and that pursuant to the compromise between the parties dated 911972 the agreement was destroyed
In the trial court the plaintiff relied mainly on Ext
PW 11A being the entry of the transaction in the Petition Writer s Register
When this Exhibit was disallowed by the trial court vide its order dated 27101976 as the entry was a duplicate of its original document which had not been produced in the court and therefore inadmissible the plain tiff s revision petition therefrom to the High Court was allowed with a direction to impound the document in accord ance with law and then proceed with the case
The High Court in its order dated 1871977 characterised Ext
PW 11A as the entry in the Petition Writer s Register and observed that it contained all the details of a transaction but appeared to be neither a copy nor an extract though a prima facie duplicate of the original document
The defendant respondent s special leave petition therefrom was dismissed by this Court with the following observation The entry in the writer s register which has been allowed to be admitted by the High Court subject to impounding and consequential processes will in our view be eligible for 353 admission as evidence
This means that we will not interfere with the order of the High Court
However we make it clear that the trial court which considers this entry will evalu ate it properly and not read more than what it says or treat it as equivalent to something which it does not
Full effect will be given to the entry no more no less
 In light of the aforesaid orders of the High Court as well as of this Court the trial court having decreed the suit and the defendant respondent having been unsuccessful in appeal to the Additional District Judge she filed a Regular Second Appeal which was allowed by the High Court by the impugned judgment and order to the extent already indicated
Before the High Court the defendant respondent contended that if the entry PW 11A was to be treated as original document or its counterpart the same did not bear the signa tures of one of the parties that is the respondent
The signatures of the husband of the respondent would be of no avail as there was no evidence on record to show that he had the authority to execute a document on her behalf and the document signed unilaterally by one party could not be treated as an agreement between two persons
Secondly as was admitted by the witness the entry was more or less an extract of the original document and such an extract drawn and maintained by a deed writer according to his own light could not form basis of an agreement between the parties which could be given effect to by way of specific perform ance
Both the contentions were sustained by the High Court holding that no contract could be inferred from the document PW 1 IA Accordingly the High Court set aside the decree for specific performance allowed the appeal and passed a decree to the extent of Rs5000 being the earnest money to be returned by the defendant to the plaintiff
Mr Gopal Subramaniam the learned counsel for the appellant assails the impugned judgment on the grounds inter alia that the High Court overlooked the relevant provisions of the Evidence Act as also this Court s order relating to Ext
PW 11A inasmuch as all the findings of the courts below were in favour of the appellant holding on issue No 14 that there was an oral agreement which was also admitted with its contents and the theory of destruction was found to be false that the High Court should not have gone behind the Supreme Court s order and should not have gone into the admissibility of Ext
PW 1 1A in face of this Court s order that the High Court has not given even a single reason as to why the decree of the lower courts should have been 354 set aside and that Ext
PW IIA was nightly admitted by the courts below in accordance with the Supreme Court s order but the High Court going behind that order rejected it
Counsel puts the appellant s case on PW 11A and also dehors that document
Mr RF Nariman the learned counsel for the respondent submits that the High Court rightly set aside the decree because the trial court as well as the lower appellate court were concerned only with the question as to whether there was an agreement or not but not with the question as to whether specific performance ought to be decreed or not
Counsel submits that the High Court s holding Ext
PW 11A to be inadmissible meant only its evaluation as the agree ment and that the grounds given by the High Court on the merit of the case are correct
Accordingly to counsel even assuming that Ext
PW 11A was a copy of the agreement it would by no means justify specific performance due to var ious patent and latent defects in it and it did not create any fight in favour of the plaintiff
In view of this sub mission we proceed to examine first the contract itself
In a case of specific performance it is settled law and indeed it cannot be doubted that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract
The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts
Where a valid and enforceable contract has not been made the court will not make a con tract for them
Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable
The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract
It is therefore necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it
The con tract being the foundation of the obligation the order of specific performance is to enforce that obligation
Mr Subramaniam argues that there was an oral agreement
The issue No 1 was whether there was a valid agreement of sale dated 1691971 between the parties if so what were its terms
Issue No 14 was whether there was an agreement of sale on 1291971 between the parties if so what were its terms The trial court adjudicated issue No 1 in favour of the plaintiff
Before the First Appellate Court it was contended by the defendant that the alleged agreement to sell 355 dated 1691971 was not admissible in evidence for the reason of it having not been scribed on the stamp paper of the requisite value nor could any secondary evidence be adduced by the plaintiff respondent to prove and establish the contents of the said agreement
The defendant averred that she never intended to sell the suit property to the plaintiff nor was it intended to be purchased by the plain tiff and that the agreement dated 1691971 was a paper transaction which was brought into being for exerting pres sure on Lajwanti the other co sharer of the property as suggested by plaintiff s husband Master Kasturi Lal
The plaintiff before the First Appellate Court relied on Ext
PW 11A and the Court observed The learned counsel for the defendant appellant very fair lyfrankly submitted and conceded at the bar that the fate of this case hinges in its entirety on the all important document Ext
PW 11A which is claimed by the plaintiff re spondent to be an agreement to sell dated 16971 the specific performance of which was sought and enforced in the suit by her While Mr Subramaniam asserts that the correspondence between the parties amply showed admission of the contract on the part of the defendant respondent Mr Nariman s demurrer is that there was no such admission but on the other hand statements on the part of the defendant showed that she put an end to what was claimed to be a contract
Though predominantly a question of fact in view of the assertions of counsel we have ourselves looked into the correspondence on record
The earliest letter on record is from SK Singhal Advocate for the plaintiff Mayawanti to defendant Kaushalya Devi and Lajwanti stating inter alia that on 169
1971 the latter agree to sell one karkhana building with two wheat grinding machines two kohlus for expelling oil one electric motor of 20 HP electric connection and other necessary goods and accessories owned by them and Kaushalya Devi executed an agreement to sell the building and machinery for Rs50000 and received a sum of Rs5000 in advance at the time of execution of the said agreement that in case of default his client was entitled to get the sale deed executed through the intervention of the court and further that in case Lajwanti did not sign the sale deed Kaushalya Devi would execute it with regard to one half share belonging to her that the sale deed was to be executed upto 2691971
 and that his client was ready and willing to perform her part of the contract
KaushalVa Devi was therefore called upon to execute and register the sale deed in favour of Mayawanti to the extent of one half each 356 of the karkhana as his client had always been and still was ready and willing to perform her part of the contract
The defendant replied to the said letter through her Advocate Hat Kishan Lal Soni by letter dated December 29 1971 stat ing that Mayawanti agreed to buy a factory consisting of a flour mill two kohlus a 20 HP electric connection in stalled in property Unit No B VII 7 old B VIII 9 new and she called upon the plaintiff to arrange to pay the sum of Rs50000 and get the sale transaction registered within 10 days failing which the sender should be at liberty to sell it to any other party at the risk of the plaintiff for compensation by way of damages suffered from the resale
It is to be noted that there is no mention of any building in this letter
In their letter dated 411972 from Mr Soni to Mr Singhal Advocate for the plaintiff it was stated that the agreement was to transfer two kohlus and 20 HP elec tric connection installed in the property Unit No B VII 7 01dB VIII 9 new situated on Gokal Road Ludhiana lying on the road side nearby excluding the buildings and the 20 HP electric motor on receipt of full price of Rs50000 and that the latter s client seemed to be labouring unneces sarily to include the building and 20 HP electric motor in the bargain
In his letter dated 1811972 to the plaintiff Sham Lal Katyal Advocate of Lajwanti intimated that Kausha lya Devi had no fight to sell the share of Lajwanti
In his letter dated 1371973 Sukhpat Rai Wadehra Advocate for Mayawanti stated that the defendant entered into an agree ment to sell the property Unit No B VII 7 old and B VIII 9 new with a flour mill two kohlus 20 HP facto ry connection and a wooden cabin standing on the roadside and that due to the partition with her sister Lajwanti a sale deed was to be executed on or before 2691972 and she having failed to do so Mayawanti was entitled to specific performance of the agreement to sell and therefore she was called upon to execute the sale deed of property No B VII 7 old and B VIII 9 new
In his letter dated 2371973 Mr Soni wrote to Mr Wadehra that the agreement was without the building and the motor and that the original agreement was suspected to have been interpolated and so not produced by the plaintiff as required by the defendant
In the letter dated August 3 1973 from Mr Wadehra to Mr Soni it was asserted that the agreement was for the building and the machinery therein and that the agreement was never cancelled orally
In the next letter dated 691973 from Mr Ahluwa lia the defendant s lawyer reiterated that the agreement dated 1691971 was for karkhana only and not for the build ing and that the plaintiff could not arrange money for payment
In this letter it was stated that the time was of essence of the contract and had Mayawanti paid any earnest money after the expiry date 2691971 the defendant was 357 entitled to forfeit the same
Thus even though the sale deed was to be executed on 2691971 the instant suit was filed long thereafter on 3171973
If the above correspondence were true it would appear that the contract was in the alternative of either whole or half of the property and that the offer and acceptance did not correspond
It is settled law that if a contract is to be made the intention of the offeree to accept the offer must be expressed without leaving room for doubt as to the fact of acceptance or to the coincidence of the terms of acceptance with those of the offer
The rule is that the acceptance must be absolute and must correspond with the terms of the offer
If the two minds were not ad idem in respect of the property to be sold there cannot be said to have been a contract for specific performance
If the par ties themselves were not ad idem as to the subject matter of the contract the court cannot order specific performance
If the plaintiff understood the terms to have included the building but the defendant understood it to have excluded the building and the so called memorandum Ext
PW 11A did not mention the building there is no contract before the court for specific performance
While Mr Subramaniam would argue that the land was also included Mr Nariman rightly points out that land was nowhere mentioned in PW 11A
It is true that Issue Nos 2 and 3 were whether the defendant delivered possession of the property to the plaintiff pursu ant to the agreement and whether the possession was illegal ly taken by the defendant and the Trial Court found no independent evidence and Kasturilal admitted that there was no document to prove the delivery of possession
However on basis of a suggestion to Kasturilal that it was incorrect to suggest that any goods ie gunny bags oil khal was in possession having been taken out from the factory build ing at the time of repairs the trial court concluded that delivery of possession was there
The first appellate court also took it to be a vital and material suggestion and upheld the finding
Admittedly the possession was with the defendant at the time of the suit and there was no proceed ing to recover the possession by the plaintiff
This infer ential finding therefore can not have any bearing on the subject matter of the contract contrary to what was stated in Ext
PW 11A which was heavily relied on by the plain tiff
Mr Subramaniam then submits that the plaintiff was entitled to specific performance by virtue of Ext
PW 11A which was rightly admitted and that even if it was excluded from consideration then also on the notices pleadings and evidence the plaintiff was entitled to a 358 decree and the High Court ought not to have gone behind the order of the Supreme Court to hold that Exhibit to be inad missible and it never adverted to the admission of the agreement of 169
Before us Mr Subramaniam argued that Ext
PW 11A was either a primary evidence or a second ary evidence of the original and its impounding implies its intrinsic value for the purpose of the case
The signatures were not denied
The trial court rightly treated it as the agreement and in the written statement the defendant ob jected to its admissibility and not to its contents
Mr Nariman would like us to proceed on the basis that Ext
PW 11A was not disputed by the defendant
PW 11A is Sl
No 871 dated 1691971 in the columns of the register of Atma Ram Gupta petition writer Ludhiana for the year 1971 and contains the following par ticulars It is styled as receipt for Rs5000 in column 4 and in column 3 the name and address of the writer is given as Smt
Koshalya Devi Wo Dharam Dev Ludhiana Gokal Road Mohalla Kothi Megh Singh
It bore 10 np stamp
In writer s signatures column No 8 it contains writer s signature in English and the RTI of Kaushalya Devi and the signature in English of Kasturi Lal
It contains the signatures of its writer Atma Ram Gupta petition writer Ludhiana dated 21111971
Under the column particulars of writing and address for the witnesses it contains the following Smt
Mayawanti Wo Master Kasturi Lal Ludhiana owns and has a factory flour mill Two kohlus  for expelling oil
I and Smt
Lajwanti widow of Baru Ram Ludhiana have an elec tric motor of 20 HP connection in working condition at Gokal Road
To the East Amar Singh to the West Mansa Ram Ramji Das to the north there is a road to the South there is a Gali
All these are settled to be sold for Rs50000 and Rs5000 is taken as advance
The balance will be taken at the time of registration
The registration will be done at the expense of the buyer
It will be in the name of the buyer or in any other name he indicates by 269
If any other person has a right or encumbrance on it the advance and compensation will be paid back
If Lajwanti does not sign these sale deeds then I will execute the sale deed of my one of the two shares otherwise pay pack the advance and compensation in the same amount
The buyer may take the advance
359 WITNESSES Dharam Dev husband of one who gives the receipt Ro Ludhiana Kothi Megh Singh Gokal Road
Tarsem Kumar Gupta Stamp Vendor Khanna Zila Distt
Ludhiana Mohalla Hakim Rehamatullah Kucha Kaka Ram House No 27 13 9
 Admittedly witnesses were examined and cross examined on this Exhibit and the appellant argued before us on its basis
The defects pointed out by Mr Nariman are that it refers to Smt
Mayawanti Wo Master Kasturi Lal as the owner of the factory flour mill and two kohlus for expelling oil
Mayawanti the plaintiff appellant was the intending pur chaser and not owner of the property
The owner and vendor was the defendantrespondent Kaushalya Devi
It nowhere mentions the land and the building and it gives the proper ty number only
Of course the boundaries of the factory flour mill are given
Mr Subramaniam submits that land was implied in the description
Mr Nariman would not agree
It says if Lajwanti does not sign this sale deed then I will execute the sale deed of my one of the two shares otherwise pay back the advance and compensation in the same amounts
The buyer may take the advance
 What is the legal effect of this statement on the agreement Even assuming that recita tion of Mayawanti as the owner was a mistake and the factory also implied the land whereupon it stood the question is whether it amounts to an alternative promise
In Halsbury s Laws of England 4th Edn
Vol 9 Para 446 on alternative promises we read When a promise is made in an alternative form and one alternative is impossible to perform the question whether the promisor is bound to perform the other or is altogether excused depends on the intention of the parties to be ascer tained from the nature and terms of the contract and the circumstances of the particular case
The usual result in such a case will be that the promisor must perform the alternative which remains possible but it may be that on the proper construction of the contract there is not one obligation to be performed in alternative ways but one obligation to be performed in one way unless the promisor chooses to substitute another way in which case the pri mary obligation being impeded the promisor is not bound to exercise the option for the benefit of the other party Applying the principle to the instant case on proper con struc 360 tion of Ext
PW 11A can it be construed that there was not one obligation to be performed in alternative ways but one obligation to be performed in one way unless the promisor choose to substitute another way In other words the pri mary obligation being impossible was the promisor bound to exercise the option for the benefit of the other party It would be reasonable to construe that if Lajwanti failed to sign the sale deed then the promisor would either execute the sale deed in respect of her share or in the alterna tive pay back the advance and compensation in the same amount and the buyer would have to take the advance
Laj wanti having refused to sell her share the first alterna tive became impossible
The question then was whether the second alternative would automatically follow or option was reserved by the vendor either to sell her own share or to pay back the advance and the compensation in the same amount
The first alternative failing if the promisor decided in favour of the other alternative it could not be said that there was any breach of any obligation under the agreement and if that was so there could arise no question of specific performance of the contract
Looking at PW 1 iA from another angle the payment was an alternative to performance
In paragraph 4 17 of volume 44 of Halsbury s Laws of England dealing with payment as an alternative to performance we find There are cases where the court holds on the construction of the contract that the intention of the parties is that the act may be done by the contracting party or that payment may be made by him of the stipulated amount so that the contracting party has in effect the option either of doing the act which he has contracted to do or paying the speci fied sum the contract being alternative either to do or abstain from doing on payment of the sum in money
The court may treat covenants to perform or to pay as alternative where specific performance would work unreasonable results
 The expression otherwise pay back the advance and compensa tion in the same amount  is capable of being interpreted as payment of the amount as alternative to performance
Of course the amount advanced and the compensation was stipu lated to be the same amount
That however would not affect the real character of the promise
We may also refer to another element of uncertainty or ambi 361 guity in the contract in the event that has happened viz Lajwanti s refusal to part with her share in the property
exhibit PW 1 1A says that in that event Kaushalya Devi should execute the sale deed of my one of the two shares
The share is undefined and the consideration for the sale price for the half share is also unspecified
This is of impor tance because portions of the property are not equally valuable due to the situation of the kohlus flour mill etc
on a part thereof
It is true that eventually there was a partition between Kaushalya Devi and Lajwanti and the vendee may have had no difficulty in working out the portion that should come to her towards the half share agreed to be sold by Kaushalya Devi
But the question is whether words could be read into Ext
PW 11A to spell out an agreement on the date of that exhibit that in case Lajwanti backed out Kaushalya Devi would sell her half share to the appellant for one half of the total consideration
It seems difficult to say that the answer should necessarily be in the affirma tive
There are too many is to be dotted and it s to be crossed before a clear and unambiguous contract on the terms sought to be enforced could be spelt out of the language of Ext
PW 1 1A
The specific performance of a contract is the actual execution of the contract according to its stipulations and terms and the courts direct the party in default to do the very thing which he contracted to do
The stipulations and terms of the contract have therefore to be certain and the parties must have been consensus ad idem
The burden of showing the stipulations and terms of the contract and that the minds were ad idem is of course on the plaintiff
If the stipulations and terms are uncertain and the parties are not ad idem there can be no specific performance for there was no contract at all
Where there are negotiations the court has to determine at what point if at all the parties have reached agreement
Negotiations thereafter would also be material if the agreement is rescinded
The jurisdiction of the court in specific performance is discretionary
Fry in his Specific Performance 6th Edn
P 19 said There is an observation often made with regard to the jurisdiction in specific performance which remains to be noticed
It is said to be in the discretion of the Court
The meaning of this proposition is not that the Court may arbitrarily or capriciously perform one contract and refuse to perform another but that the Court has regard to the conduct of the plaintiff and to circumstances outside the contract itself and that the mere fact of the existence of a 362 valid contract is not conclusive in the plaintiff s favour If the defendant  said Plumer VC can show any circum stances dehors independent of the writing making it ineq uitable to interpose for the purpose of a specific perform ance a Court of Equity having satisfactory information upon that subject will not interpose
 The author goes on to say that of the circumstances calling for the exercise of this discretion the Court judges by settled and fixed rules hence the discretion is said to be not arbitrary or capricious but judicial hence also if the contract has been entered into by a competent party and is unobjectionable in its nature and circumstances specific performance is as much a matter of course and therefore of right as are damages
The mere hardship of the results will not affect the discretion of the court
 Regarding the extent of the jurisdiction Fry wrote If a contract be made and one party to it make default in performance there appears to result to the other party a right at his election either to insist on the actual per formance of the contract or to obtain satisfaction for the non performance of it
It may be suggested that from this it follows that a perfect system of jurisprudence ought to enforce the actual performance of contracts of every kind and class except only when there are circumstances which render such enforcement unnecessary or inexpedient and that it ought to be assumed that every contract is specifically enforceable until the contrary be shown
But so broad a proposition has never it is believed been asserted by any of the Judges of the Court of Chancery or their successors in the High Court of Justice though if prophecy were the function of a law writer it might be suggested that they will more and more approximate to such a rule As Chitty observes the prophecy has not been wholly fulfilled for the scope of the remedy remains subject to many limitations
 But the author observes a welcome move towards the more liberal view as to the extent of jurisdic tion which was favoured by Lord Justice Fry
But where no contract has been entered into at all there is no room for any liberal view
Section 9 of the Specific Relief Act says that except as otherwise 363 provided in that Act where any relief is claimed under Chapter I1 of the Act in respect of a contract the person against whom the relief is claimed may plead by way of defence any ground which is available to him under any law relating to contracts
In the instant case the defence of there having not been a contract for lack of consensus ad idem was available to the defendant
In view of the above conclusion the appeal has to be dismissed
We should however like before concluding to refer to certain other aspects debated before us 1 At a late stage of the arguments it was contended on behalf of the appellant that the translation of Ext
PW 1 1A acted upon by the High Court is not accurate and that it does not refer to Mayawanti as the owner of the Kohlus etc
We directed the original records to be called for and also gave leave to the appellant to file a translation
This has been done but the respondent does not accept this
It was also mentioned on behalf of the appellant that the translator in the Supreme Court had found the original too illegible to be translated and it was requested that a translation may be allowed to be got done by an Advocate of this Court knowing the language
We cannot permit this at this stage
The unofficial translation filed tries to im prove upon the recorded translation of Ext
PW 1 1A in two respects
First the reference to Mayawanti as the owner is sought to be substituted by a reference to her as the vend ee
So far as this is concerned as already pointed out even if we take the reference to Mayawanti in the exhibit as due to oversight there are various other aspects of uncer tainty which render the terms of Ext
PW 11A specifically unenforceable
The second improvement is the addition of a sentence at the end The purchaser either may take earnest money along with penalty or get the registry done forcibly
I will have no objection
 This is a totally new version which we cannot permit at this stage when it is objected to by the other side
After all the entry PW 11A in the Deed Writer s Register could not be treated as preappointed evidence
It was not a piece of evidence prescribed in advance by statute as requisite for proof of the transaction of sale as distinguished from casual evidence
But it could not be allowed at the same time to grow out of the surround ing circumstances
2 A reference was made in the argument before us to an oral agreement preceding Ext
PW 11A
But the terms of such oral 364 agreement are nowhere in evidence and the same uncertainties surround it as hover around Ext
PW 11A
The High Court cannot therefore be faulted for not confirming the decree of specific performance on the basis of an oral agreement
3 A good deal of argument was also addressed before us as to whether PW 11A was admissible as secondary evidence
We have not touched upon this and have proceeded on the assump tion that the entries in the document writer s register signed by the parties can itself be treated as an agreement between them the specific performance of which can be sought
4 Shri Gopal Subramaniam contended that the High Court has erred in holding contrary to the earlier observations of this Court that Ext
PW 11A was inadmissible
There is no doubt a certain degree of ambiguity in the observations of the High Court in this regard
But reading the High Court s judgment as a whole we are inclined to accept the submis sion of Mr Nariman that the High Court has only evaluated the exhibit in the light of the direction of this Court that full effect will be given to the entry no more no less and not rejected it as inadmissible as contended for by the appellant
We have referred to these aspects only because counsel had placed considerable emphasis on them in the course of arguments but in the view we have taken of the scope and effect of Ext
PW 11A it is unnecessary to elaborate on them or to deal with certain other contentions urged before_us
For the foregoing reasons we uphold the finding of the High Court that there was no valid and enforceable contract between the parties as evidenced by Ext
PW 11A
The result is that this appeal fails and is dismissed but under the peculiar facts and circumstances of the case without any order as to costs
Interim orders if any stand vacated
RNJ Appeal dis missed


Summary:
The appellant joined service under the State Government as a Lecturer
Later he was deputed to the Directorate of Youth Services as an Assistant Director and subsequently confirmed in the said post
On 27th of March 1978 he was temporarily promoted as Deputy Director for a period of six months and an order was made on 20th December 1978 ap pointing him on a regular basis with effect from 27th March 1978
Respondent No 1 was recruited directly as Deputy Director on 2871978 joined service on 781978 and was confirmed on 781980
A draft Gradation List was published on 25th January 1983 wherein the appellant was shown above respondent No 1 and he represented against this placement by claiming sen iority over the appellant
This was not accepted and a final Gradation List was published on 14th September 1983 maintaining the position shown in the draft list
Respondent No 1 filed a writ petition before the High Court which was transferred to the State Administrative Tribunal
The Tribunal held that respondent No 1 was senior to the appellant as the promotion of 27th March 1978 in favour of the appellant was a temporarily measure and after the six months period expired the appellant was really not continuing as Deputy Director and that the order of 20th December 1978 issued by the Government could not there fore provide a regular retrospective promotion in view of the special Rules obtaining in the State
It therefore directed the redrawing of the seniority list by showing the appellant below respondent No 1
Aggrieved by the aforesaid order of the Tribunal the appellant as well as the State Government filed appeals to this Court
696 Dismissing the appeals this Court HELD 1
The Tribunal has found that under Karnataka State Civil Services Regulation of Promotion Pay  Pen sion Rules 1973 no retrospective promotion is admissible unless the situation comes within the various clauses of rule 2 and that the instant case was not covered by rule 2 and therefore the order of 22nd December 1978 giving a retrospective promotion from 2731978 was not justified
698B C 2
Attempt was made to place the appellant above re spondent No 1 by making shifting orders between 27378 and 22121978
The appellant was Editor of Youth Karnataka even when he was confirmed as Assistant Director and the Tribunal has recorded that he never worked as Assistant Director
The conclusion reached by the Tribunal cannot be said to be wrong
Its order therefore does not call for any interfer ence
698D E