Case: Srinivas Ram Kumar Vs. Mahabir Prasad And Others

Mukherjea, J.1. This appeal is on behalf of the pltf. 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 defts. second party who, it is alleged, agreed to sell the house to the pltf. but subsequently resiled from the agreement and sold the same to the defts. first party who purchased it with notice of the contract.2. The pltfs case, in substance, is that in September 1941 the defts. 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 defts. thereupon approached the pltf. firm and a contract was entered into by and between them some time 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 pltf. firm on behalf of the vendors to a creditor of the latter on 28-10-1941. The vendors in their turn put the pltf. in possession of the house agreed to be sold in part performance of the contract and promised to execute a convenience 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 pltf. The second party defts. however, went back on their promise and did not execute the conveyance in favour of the pltf. even after they get back their title deeds from Jadu Ram and on the other hand, they sold the house to the defts. first party on 13-8-1943. The pltf, was thus obliged to bring this suit, claiming specific performance of the contract of sale.3. The suit was contested by both sets of defts. The second party defts. Contended interalia that they never agreed to sell their house at Gaya to the pltf. and the story of a contract of sale as set up by the pltf. was entirely false. They admitted that they were in need of money and hence approached the pltf. for a loan and the pltf. 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 pltf. was put in possession of the same.4. This defence was reiterated by the first party defts. who further pleaded that they were bona fide purchasers for value having no notice of any contract of sale with the pltf.5. The learned 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 pltf. was not established and it was not in pursuance of any such contract that the pltf. was put in possession of the house. It was held that the defts story was true and that the pltf. did advance a sum of Rs. 30,000 to the defts. second party, but this was by way of a loan and not a part payment of the consideration money. So far as the first party defts. 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 pltfs claim for specific performance but as the second party defts. admitted that they had taken an advance of Rs. 30,000 from the piff., a money decree was given in the pltf. for this sum aganist these defts with interest at 6% per annum from the date of the suit till realisation.6. Against this decision, the pltf. took an appeal in the H. C. at Patna, and the second party defts. 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 H. C. who, by their judgment dated 29-8-1941 dismissed the appeal of the pltf. and allowed the cross-objections preferred by the second part defts. The learned Judges held, concurring with the trial Ct., that no case of concluded contract between the parties was established by the evidence adduced in the case, and the fact of the pltf. being put in possession of the house could not be regarded as an act of part performance of any such contract. The H. C. agreed with the trial Judge in holding that the sum of Rs. 30,000 was advanced as a loan by the pltf. to the second party defts., though the evidence was not very clear regarding payment of interest upon it, and that the first party defts. were purchasers for value without notice. The H. C. held further that even if there was a contract, its terms were vague and indefinite, 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 interests of the minor. In the opinion of the H. C., the money decree granted against the second party defts. was not warranted in law as no case of a loan was made by the pltf. 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 pltf. by the trial Ct. was set aside. It is against this judgment that the pltf. has come up on appeal to this Ct.7. The learned counsel for the applt. contends before us that the findings upon which the Cts. below disbelieved the story of the pltf. 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 H. C. was wrong in setting aside the decree for money which was given aganist the second party defts, by the trial Judge.8. The first contention put forward by the learned counsel appears to us to be plainly unsustainable. When the Cls. below have given concurrent findings on pure questions of fact, this Ct. 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 affected by violation of any rule of law or procedure. The practice adopted by this Ct. is similar to what has always been acted upon by the Judicial Committee. To quote the words of Lord Thankerton in Bibhabati v. Rammendra Narayan,51 C. W. N. 98 : (A. I. R. (34) 1947 P. C.19) "it is not by any means a cast iron practice"; there may occur cases of unusual nature which might constrain us in interfere with the concurrent findings of fact in 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 agreements upon which the pltfs 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 conclusion, which he arrived at, have been affirmed in their entirety by the H. C. on appeal. In these circumstances, we see no reason whatsoever to go beyond the facts which have been found against the applt. by both the Cts. below.9. As regards the other point, however, we are of the opinion that the decision of the trial Ct. was right and that the H. C. took an undoubtedly rigid and technical view in reversing this part of the decree at the Subordinate Judge. It is true that it was no part of the pltfs case as made in the plaint that the sum of Rs. 30,000 was advanced by way of loan to the defts. second party. But it was certainly open to the pltf. 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 pursusance 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 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 side was not 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 defts 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.As an illustration of this principle, reference may be made to the pronouncement of the Judicial Committee inMohan Manucha v. Manzoor Ahmad,70 I. A. 1 : (A. I. R. (30) 1943 P. C. 29). This appeal arose out of a suit commenced by the pltf applt. to enforce a mtge. security. The plea of the deft. was that the mtge. was void. This plea was given effect to by both the lower Ct. as well as by the P. C. But the P. C. held that it was open in such circumstances to the pltf to repudiate the transaction altogether and claim a relief outside it in the form of restitution under S. 65, Contract Art. Although no such alternative claim was made in the plaint, the P. C. allowed it to be advanced and gave a decree on the ground that the resp. 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 applt. even though the appeal was heardex partein the absence of the resp.10. Mr. Harish Chandra, appearing for the second party defts., raised the question of interest in connection with the pltfs. claim for a money decree. His contention is that the pltf. could not claim any interest so long as 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 pltf. by registered post on 12-7-1943 which the pltf. refused to accept. The first part of the contention is undoubtedly correct and is not disputed on behalf of the pltf. 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 pltf. 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 defts. undoubtedly had the use of this money all this time and in our opinion the pltf. 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 determined 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 pltfs possession of the house ceased by the end of August 1943.1

Decision reasoning: 1[ds]8. The first contention put forward by the learned counsel appears to us to be plainly unsustainable. When the Cls. below have given concurrent findings on pure questions of fact, this Ct. 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 affected by violation of any rule of law or procedure. The practice adopted by this Ct. is similar to what has always been acted upon by the Judicialcase 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 agreements upon which the pltfs 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 conclusion, which he arrived at, have been affirmed in their entirety by the H. C. on appeal. In these circumstances, we see no reason whatsoever to go beyond the facts which have been found against the applt. by both the Cts. below.9. As regards the other point, however, we are of the opinion that the decision of the trial Ct. was right and that the H. C. took an undoubtedly rigid and technical view in reversing this part of the decree at the Subordinate Judge. It is true that it was no part of the pltfs case as made in the plaint that the sum of Rs. 30,000 was advanced by way of loan to the defts. second party. But it was certainly open to the pltf. 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 pursusance 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 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 side was not 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 defts 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.As an illustration of this principle, reference may be made to the pronouncement of the Judicial Committee inMohan Manucha v. Manzoor Ahmad,70 I. A. 1 : (A. I. R. (30) 1943 P. C. 29). This appeal arose out of a suit commenced by the pltf applt. to enforce a mtge. security. The plea of the deft. was that the mtge. was void. This plea was given effect to by both the lower Ct. as well as by the P. C. But the P. C. held that it was open in such circumstances to the pltf to repudiate the transaction altogether and claim a relief outside it in the form of restitution under S. 65, Contract Art. Although no such alternative claim was made in the plaint, the P. C. allowed it to be advanced and gave a decree on the ground that the resp. 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 applt. even though the appeal was heardex partein the absence of thereceipt of this hundi was totally denied by the pltf. 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 defts. undoubtedly had the use of this money all this time and in our opinion the pltf. 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 determined 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 SeptemberIt is admitted that the pltfs possession of the house ceased by the end of August 1943.