L.P.A. No. 910 of 1985 1 In the High Court of Punjab and Haryana, Chandigarh. L.P.A. No. 910 of 1985 Date of Decision: 05.03.2008. Som Parkash …Appellant through Mrs. Manisha Gandhi, Advocate & Mr. Suvneet Sharma, Advocate. Versus Karam Dass through his L.Rs and Others …Respondents through Mr. Vikas Bahl, Advocate. CORAM: HON'BLE MR. JUSTICE VIJENDER JAIN, CHIEF JUSTICE HON’BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA 1. Whether Reporters of Local Newspaper may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Vijender Jain, Chief Justice. Present Letters Patent Appeal has been filed by the appellant aggrieved against judgment dated 3.5.1985 of learned Single Judge L.P.A. No. 910 of 1985 2 passed in Regular First Appeal No.1123 of 1976. One Ganesha Dass had two sons Maya Dass and Devi Dass. Maya Dass renounced the world and became chela of one Narain Dass. However, he was owner of his ancestral land about 77 kanals in village Banga, 44 kanals 6 marlas of land in village Kajla and was muafidar of land measuring 42 kanals & 2 marlas at village Balla. Maya Dass’s brother Devi Dass had five children, namely Charan Dass, Karam Dass, Biram Dass, Som Parkash and Gurbachan Dass. Maya Dass was issueless and during fag end of his life, it is stated that he adopted his brother’s son Som Parkash as his chela. The present dispute is between brothers who are nephews of Maya Dass regarding his estate. It is stated in the suit that when Maya Dass intended to take Som Parkash as his disciple, this was disputed by other brothers of Som Parkash. In order to pacify, Maya Dass agreed to gift 60 kanals of land in village Banga in equal share to Karam Dass, Biram Dass, and Gurbachan Dass, brothers of Som Parkash and 40 kanals of land at village Kajla and Balla to Biram Dass and Gurbachan Dass and 12 kanals of land to Karam Dass, out of the land situated in villages Kajla and Balla. This was done by Maya Dass to avoid litigation. It was orally agreed that a gift deed to this effect would be executed on 13th day after Lohari in the year 1957. Since at the time of agreement as respondents were not possessed of sufficient money to defray expenses of the stamps and the registration of the gift deed, therefore, it was decided that the deed would be executed later on the 13th day of Lohari in the L.P.A. No. 910 of 1985 3 year 1957. Meanwhile,Maya Dass died before the gift deed could be executed. After his death, appellant being his Chela succeeded to the estate and Dera left by Maya Dass. Appellant also agreed to execute the gift deed as promised by his Guru Maya Dass and in this behalf executed a formal agreement dated 1.12.1957, Ex.P1. It was stipulated therein that the gift deed would be executed after the consolidation proceedings in village Banga were over and the mutation of inheritance in respect of the land in village Balla had been sanctioned. After the change of inheritance in the mutation records, appellant became reluctant to execute the gift deed. Respondents sent notice to the appellant in this behalf. The appellant sent a telegram in reply saying that he would execute the gift deed on 2.2.1963. It is the case of the respondents that they reached the office of Sub Registrar on that day but the appellant did not turn up. In these circumstances, the respondents filed a suit stating that they were ready and willing to perform their part of the agreement and prayed for a decree for execution of gift deed by way of specific performance of the agreement dated 1.12.1957, Ex.P1 and in the alternative, for a declaration to the effect that the respondents were the owners of the land and also a decree for possession. The suit was contested. Som Parkash appellant inter alia took the plea that after execution of the agreement dated 1.12.1957, Ex.P1, a fresh agreement dated 2.8.1962, Ex.D1 was executed and by virtue of that agreement, the earlier agreement stood rescinded and cancelled. The sum and substance of the plea which was taken by the L.P.A. No. 910 of 1985 4 appellant in the written statement was that the suit which was instituted on the basis of Ex.P1, was not competent. A plea was also taken that agreement, Ex.P1 was without consideration and the respondents had obtained the appellant's signatures under threat and undue influence. After the filing of the written statement, the respondents moved an application dated 29.8.1963 under Order VI, Rule 17, Code of Civil Procedure, for amendment of the plaint so as to claim the relief on the basis of agreement Ex.D1 which was pleaded by the appellant in his written statement. Ultimately, the trial Court allowed the amendment vide order dated 22.10.1963 on payment of costs which were duly paid. Amended plaint filed along with the application for amendment was treated to be the plaint in the suit. Written statement to the amended plaint was filed on 3.12.1963. Lateron, the trial Court framed two preliminary issues as to whether the suit was bad for multifariousness and whether the suit was not properly valued for court fee. The trial Court came to the conclusion on 23.1.1964 that the suit was bad for multifariousness and accordingly gave the respondents an option to remove the defects. On 28.1.1964 amended suit was filed. It was prayed in the suit that as per agreement dated 1.12.1957, appellant should execute gift deed in favour of the defendants. Written statement to the plaint was filed on 1.2.1964. On the pleadings of the parties, the following issues were framed by the trial Court:- 1) Whether there was any agreement dated 2.8.62 between plaintiffs and defendant and Charan Dass; if so, to what effect? L.P.A. No. 910 of 1985 5 2) Whether the plaintiffs are entitled to the possession of the suit land on the basis of the agreement dated 1.12.57? 3) Whether the plaintiffs are entitled to get the gift deed executed and registered in their favour? 4) Whether the plaintiffs are entitled to declaration and injunction prayed for? 5) Whether the agreement dated 1.12.57 was got executed under undue influence; if so, to what effect? 6) Relief. 7) Whether the agreement dated 1.12.57 is without consideration; if so, to what effect? The suit was dismissed by the trial Court vide judgment dated 30.4.1964. Aggrieved by the judgment and decree, the respondents filed Regular First Appeal No.176 of 1964. The said appeal was disposed of by a short order dated 29.4.1976 whereby the decree of the trial Court was set aside and the suit was remanded to the trial Court. After remand, two additional issues were framed which are to the following effect:- “8. Whether Maya Dass was owner of the property in dispute or the property belonged to Bhekh? 9. If issue No.8 is not proved and it is found out that the property belonged to Bhekh, L.P.A. No. 910 of 1985 6 could it be alienated by the Manager of the Bhekh? Again, the trial Court dismissed the respondents' suit on the ground that the agreement dated 1.12.1957, Ex.P1 on the basis of which the respondents had claimed the relief, had been substituted by agreement dated 2.8.1962, Ex.D1 and, therefore, the earlier agreement was no longer valid and the respondents' suit on that score could not succeed. Aggrieved by the said dismissal of the suit, Regular First Appeal No.1123 of 1976 was filed, the decision of which has been impugned before us in this Letters Patent Appeal. Mrs.Manisha Gandhi, learned counsel for the appellant has contended that since the suit was based on agreement dated 1.12.1957, Ex.P1 and that agreement was cancelled or rescinded by the subsequent agreement dated 2.8.1962, Ex.D1, then the respondents were not entitled to any relief and the learned Single Judge erred in setting aside the findings of the trial Court which had rightly dismissed the suit. It was vehemently contended by the learned counsel that the respondents were given an option to remove the defects on the basis of agreement dated 2.8.1962, Ex.D1 and having made an election by the respondents in favour of agreement Ex.P1, no relief could have been granted on the basis of Ex.D1. It was further contended by the learned counsel that the respondents abandoned/waived of their claim and did not file any appeal against the waiver of their claim on the basis of Ex.D1 and once a claim has been waived by a party, no relief could have been granted by the learned Single Judge. Another point which was urged before us by learned counsel L.P.A. No. 910 of 1985 7 for the appellant was that in a gift deed if the same is not accompanied by delivery of possession as is the case in hand, that gift deed is incapable of being acted upon. It was also contended before us that a Court cannot grant relief which has not been prayed for in the suit. In this behalf, she placed reliance on Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakur, 1997(1) R.C.R. (Civil) 556. Another limb of the argument of learned counsel for the appellant was that no relief in equity superseding the law can be granted. In support of her submission, learned counsel relied upon Ganesh Shet v. Dr.C.S.G.K.Setty and others, AIR 1998 SC 2216 in which it has been held:- “21. The above principles are, it is clear, special principles applicable to suits for specific performance. The case before us does not fall within the exceptions namely part performance or immaterial variations. Nor is it a case where the plaintiff has agreed to amend his plaint. On the other hand, as already stated, the plaintiff spurned the opportunity given to him by the High Court for amendment of plaint. The case is in no way dissimilar to the cases in Gonesh Ram v. Ganpat Rai (AIR 1924 Cal 461) and to Mohd. Ziaul Jaque (AIR 1966 Cal 605), referred to above. (b) Yet another aspect of the matter is whether in a suit for specific performance the plaintiff can be given relief under the general prayer “such other L.P.A. No. 910 of 1985 8 relief as this Hon'ble Court may deem fit to grant in the circumstances of the case”, in the light of Order 7, Rule 7, C.P.C. Order 7, Rule 7, C.P.C. Reads as follows: “Relief to be specifically stated: Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. An the same rule shall apply to any relief claimed by the defendant in his written statement.” Mulla (CPC) Vol.2 (15th Ed. p. 1224) says that such relief may always be given to the same extent as if it had been asked for, provided it is not inconsistent with that specifically claimed, and with the case raised in the pleading. (See Cargil v. Bower, ((1978) 10 Ch D 502, 508); Kidar Lall Seal v. Hari Lall Seal (1952 SCR 179: (AIR 1952 SC 47)).” Having laid much stress upon Ganesh Shet’s case (supra), Mrs. Gandhi urged that once despite dismissal of the suit being bad for multifariousness an option having been given to the respondents to rely either upon agreement Ex.P1 dated 1.12.1957 or agreement Ex.D1 dated 2.8.1962, Learned Single Judge committed a grave error in L.P.A. No. 910 of 1985 9 making out a case on basis of equity in favour of the respondents based on subsequent agreement Ex.D1 dated 2.8.1962, as in the suit instituted on 28.1.1964, respondents had chosen to rely upon agreement Ex.P1 dated 1.12.1957. To fortify her submission, she placed reliance upon Sheriff Iqbal Hussain Ahmad v. Kota Venkata Subbamma and others, AIR 1994 Andhra Pradesh 164 in which it has been held that `equity follows law but not vice versa' and relevant para is as under:- “9. Equity is not available where effective and appropriate remedy is available. Equity cannot be invoked to offset the appropriate and specific remedy available through the common, general or express law of the land. Equity always follows the law, but is not vice versa. Even where equities are equal, law prevails. But, in the instant case, the question of invocation of equity in favour of the defendants does not and cannot arise at all. Equity is basically a gloss or appendage to the common law and not a rival or competing system. Equity does not destroy the law nor create it, but assists it. Even if the court feels that by enforcing the express law of the land, hardship is caused to the defendant there cannot be any equitable intervention. If a person is deprived of his property or any right or interest therein, he should more as a rule than by way of exception, be entitled to get the very property or to have and enjoy the very right or interest which L.P.A. No. 910 of 1985 10 is his and of which he is being deprived rather than pecuniary satisfaction in form of damages. Right to recover property vested under law is different from right to acquire property vested in equity. The obligation or duty in the former arises under the general and common law and is an incident of ownership or possession while under the latter arises through the voluntary acts of the parties and is an incident of contract. In the former, specific relief should be granted while in the latter equitable jurisdiction can be invoked in favour of either of the parties depending upon the relevant factors.” It was contended before us by Mrs.Gandhi that since the respondents have sought relief on basis of agreement dated 1.12.1957 Ex.P1, therefore, they could not be granted relief on the basis of subsequent agreement dated 2.8.1962 and to fortify this, she placed reliance upon Om Parkash and others v. Ram Kumar and others, (1991)1 SCC 441 wherein the Supreme Court has held that a party cannot be granted a relief which is not claimed, if the circumstances of the case are such that the granting of such relief would result in serious prejudice to the interested party and deprive him of the valuable rights under the statute. To the similar effect, learned counsel for the appellant also cited Katragadda Ramayya and another v. Kolli Nageswararao and others, AIR 1969 Andhra Pradesh 250 and Mayawanti v. Kaushalya Devi, (1990)3 SCC 1 wherein it has been held:- L.P.A. No. 910 of 1985 11 “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 contract 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 the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation.” Learned counsel for the appellant has further argued that on the findings of fact that Ex.P1 was substituted by Ex.D1, the learned Single Judge should not have set aside the findings of the trial Court and, therefore, the respondents were not entitled to decree of specific performance. In support of her submission, learned counsel has relied L.P.A. No. 910 of 1985 12 upon A.C.Arulappan v. Smt.Ahalya Naik, JT 2001(6) SC 394. Controverting the arguments of the appellant, Shri Vikas Bahl, learned counsel for the respondents contended that the appellant was the brother of the respondents. Maya Dass in his life time had agreed to gift 60 Kanals of land to the respondents in equal shares out of his land situated at Banga and further agreed to give 40 Kanals of land to Biram Dass and Gurbachan Dass respondents out of his land situated at Villages Kajla and Bala and 12 Kanals of land to another brother Karam Dass situated in these two villages. It was further vehemently contended by Shri Vikas Bahl, learned counsel for the respondents that the order of the trial Court dated 23.1.1964 whereby the respondents were given option to remove the defects in the plaint was wrong and illegal. It was argued that having allowed amendment of the plaint vide order dated 22.10.1963, there was no occasion for the trial Court to come to a different finding. In this regard, learned counsel contended that those findings were improper, illegal and against the principle of res judicata. In support of his contention, he relied upon Arjun Singh v. Mohindra Kumar and others, AIR 1964 SC 993 in which it has been held:- “.........Again, res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits. In this connection we were referred to what this Court said in Satyandhan Ghosal v. Smt.Deorajin Debi, (1960)3 SCR 590: (AIR 1960 SC 941) where Das Gupta, J., speaking for the Court expressed L.P.A. No. 910 of 1985 13 himself thus: “The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter – whether on a question of fact or on a question of law – has been decided between two parties in one suit or proceedings and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again . . . . . . The principle of res judicata applies also as between the two stages in the same litigation to this extent that a court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one may not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.” XXX XXXX XXXX XXXX XXX L.P.A. No. 910 of 1985 14 11. We agree that generally speaking these propositions are not open to objection. If the court which rendered the first decision was competent to entertain the suit or other proceeding, and had therefore competency to decide the issue or matter, the circumstance that it is a tribunal of exclusive jurisdiction or one from whose decision no appeal lay would not by themselves negative the finding on the issue by it being res judicata in later proceedings. Similarly, as stated already, though S. 11 of the Civil Procedure Code clearly contemplates the existence of two suits and the findings in the first being res judicata in the later suit, it is well established that the principle underlying it is equally applicable to the case of decisions rendered at successive stages of the same suit or proceeding. But where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be considered before the principle is held applicable. XXX XXXX XXXX XXX L.P.A. No. 910 of 1985 15 Mr. Vikas Bahl, Advocate, learned counsel for the respondents urged that once appellants had stated in the written statement that first agreement Ex.P1 dated 1.12.1957 stood rescinded and a fresh agreement Ex.D1 dated 2.8.1962 was executed to bind the parties and accordingly the suit was amended and subsequently after same was dismissed for multifariousness it is too late in the day to bar the respondents from seeking relief which will flow to them out of subsequent agreement Ex.D1 dated 2.8.1962 on the ground that in the suit filed on 28.1.1964 merely because the respondents had relied upon Ex.P1. He has stated that the respondents being plaintiffs could rely upon Ex.D1 subsequent agreement admitted by the defendant vest in them rights alternatively and in support of this submission. Learned counsel for the respondents relied upon Firm Sriniwas Ram Kumar v. Mahabir Prasad and others, AIR 1951 SC 177 wherein it has been held:- “........A pltf. May rely upon different rights alternatively and there is nothing in the Civil P.C. To prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Ct. to give him relief on that basis. The rule undoubtedly is that the Ct. cannot grant relief to the pltf. On a case for which there was no foundation in the pleading and which the other wise was not L.P.A. No. 910 of 1985 16 called upon or had an opportunity to meet. But when the alternative case, which the pltf. Could have made, was not only admitted by the deft. In his written statement but was expressly put forward as an answer to the claim which the pltf. Made in the suit, there would be nothing improper in giving the pltf. A decree upon the case which the deft. Himself makes. A demand of the pltf. Based on the deft'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 deft. In his pleadings. In such circumstances when no injustice can possibly result to the deft., it may not be proper to drive the pltf. to file a separate suit. .....” Learned counsel also relied upon Vishram Arjun v. Irkulla Shankariah and another, AIR 1957 Andhra Pradesh 784 wherein it has been held:- “Though the plaintiff might not have expressly claimed on the basis of agreement dated 3-4-1951 which reduced the monetary obligation under Ex.P- 6, when the defendants themselves in defence had set up the said agreement and the issues were raised and the case was tried on that basis, both on principles and authority, relief cannot be denied to the plaintiff as warranted by the merits of the case. L.P.A. No. 910 of 1985 17 (13) It is alleged on behalf of the defendants that since the plaintiff has failed to produce the document (another counter-part of Ex.D-7) along with the plaint or at any time during the trial, no relief can be granted on the simple ground that the document which should form the basis of the suit is not before the court. This objection fails to take into consideration that the defendants who have set up their claim, have filed the counter-part (Ex.D-7) and to see that the other counter part is brought on record, they, after due notice to the plaintiff have filed the copy thereof because both counter-parts evidence one complete contract which should form the basis of their claim. This copy is not denied. As a matter