Case: Prem Raj Vs. D.L.F. Housing &amp; Construction Pvt. Ltd. &amp; Anr

is ready and willing to perform his part of the contract. In the present case, no such averment is made in the plaint. On the other hand, the plaintiff has alleged that the agreement was a result of fraud and undue influence and was not binding upon him. For these reasons it must be held that so far as the relief of specific performance is concerned the plaintiff has no cause of action. The legal position has been stated by Lord Blanesburgh in pronouncing the opinion of the Judicial Committee in Ardeshir Mama v. Flora Sassoon, 55 Ind App 360 at p. 372 = (AIR 1928 PC 208 at p. 216) as follows :"Where the injured party sued at law for breach, going as in the present case, to the root of the contract, he thereby elected to treat the contract as at an end and himself as discharged from its obligations. No further performance by him was either contemplated or had to be tendered. In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit. Thus it was that the commencement of an action for damages being. On the principle of such cases as Clough v. London and North Western Railway Co, (1872) LR7Ex.26, and Law v. Law (1905) 1 Ch 140,a definite election to treat the contract as at an end, no suit for specific performance whatever happened to the action, could thereafter be maintained by the aggrieved plaintiff. He had, by his election, precluded himself even from making the averment just referred to, proof of which was essential to the success of his suit. The effect upon an action for damages for breach of a previous suit for specific performance will be apparent after the question of the competence of the Court itself to award damages in such a suit has been touched upon".It was pointed out by Lord Blanesburgh that the Indian law on the subject as contained in the Specific Relief Act, 1877 is not different from the English Law. At page 375 of the same Report (55 IA) = at pp. 217-218 of AIR) Lord Blanesburgh states :"Although, so far as the Act is concerned, there is no express statement that the averment of readiness and willingness is in an Indian suit for specific performance as necessary as it always was in England [S. 24 (b) is the nearest], it seems invariably to have been recognised, and, on principle, their Lordships think rightly, that the Indian and the English requirements in this matter are the same; see e.g., Karsandas v. Chhotalal, 25 Bom LR 1037. 1050 = (AIR 1924 Bom 119 at pp. 124-125)."In the present case there is absence of an averment on the part of the plaintiff in the plaint that he was ready to perform his part of the contract. In the absence of such an averment it must be held that the plaintiff has no cause of action so far as the relief for specific performance is concerned.6. It was next contended on behalf of the appellant that in any event the High Court should have given the appellant an option to elect either of the two reliefs and ought not to have dismissed the suit at a preliminary stage so far as relief for specific performance was concerned. We do not think there is any substance in this argument. The question of election between the two reliefs would have arisen only if the appellant could have shown that in respect of specific performance he had a cause of action. As we have already pointed out, the appellant has not made out a cause of action so far as the relief of specific performance is concerned and hence the appellant is not entitled to be put to election with regard to the two alternative reliefs. We accordingly reject the argument of the appellant on this aspect of the case.7. Lastly, it was argued on behalf of the appellant that the High Court had no jurisdiction to interfere with the order of the trial Court under Section 115 of the Civil Procedure Code. It was said that the finding of the trial Court did not involve any question of jurisdiction and the High Court has fallen into an error in reversing the finding of the trial Court on issue No. 4, whether the relief for specific performance was open to the appellant in the alternative. In our opinion, there is no warrant for the argument put forward on behalf of the appellant. It is manifest that in holding that the appellant was entitled in the alternative to ask for the relief of specific performance, the trial court had committed an error of law and so had acted with material irregularity or illegality in the exercise of its Jurisdiction within the meaning of Section 115 (c) of the Civil Procedure Code. It was therefore competent to the High Court to interfere, in revision with the order of the trial court on this point. To put it differently the decision of the trial court on this question was not a decision on a mere question of law but it was a decision on a question of law upon which the jurisdiction of the trial court to grant the particular relief depended. The question was therefore one which involved the jurisdiction of the trial Court; the trial court could not, by an erroneous finding upon that question, confer upon itself a jurisdiction which it did not possess and its order was therefore liable to be set aside by the High Court in revision.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is true that under Order 7, Rule 7, Civil Procedure Code it is open to a plaintiff to pray for inconsistent reliefs. But it must be shown by the plaintiff that each of such pleas is maintainable. So far as the relief of specific performance is concerned, the matter must be examined in the light of the provisions of the Specific Relief Act.There is also another reason for holding that the appellant has made out no cause of action with regard to the relief of specific performance of the contract. It is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract. In the present case, no such averment is made in the plaint. On the other hand, the plaintiff has alleged that the agreement was a result of fraud and undue influence and was not binding upon him. For these reasons it must be held that so far as the relief of specific performance is concerned the plaintiff has no cause of action.It was next contended on behalf of the appellant that in any event the High Court should have given the appellant an option to elect either of the two reliefs and ought not to have dismissed the suit at a preliminary stage so far as relief for specific performance was concerned. We do not think there is any substance in this argument. The question of election between the two reliefs would have arisen only if the appellant could have shown that in respect of specific performance he had a cause of action. As we have already pointed out, the appellant has not made out a cause of action so far as the relief of specific performance is concerned and hence the appellant is not entitled to be put to election with regard to the two alternative reliefs. We accordingly reject the argument of the appellant on this aspect of the case.7. Lastly, it was argued on behalf of the appellant that the High Court had no jurisdiction to interfere with the order of the trial Court under Section 115 of the Civil Procedure Code. It was said that the finding of the trial Court did not involve any question of jurisdiction and the High Court has fallen into an error in reversing the finding of the trial Court on issue No. 4, whether the relief for specific performance was open to the appellant in the alternative. In our opinion, there is no warrant for the argument put forward on behalf of the appellant. It is manifest that in holding that the appellant was entitled in the alternative to ask for the relief of specific performance, the trial court had committed an error of law and so had acted with material irregularity or illegality in the exercise of its Jurisdiction within the meaning of Section 115 (c) of the Civil Procedure Code. It was therefore competent to the High Court to interfere, in revision with the order of the trial court on this point. To put it differently the decision of the trial court on this question was not a decision on a mere question of law but it was a decision on a question of law upon which the jurisdiction of the trial court to grant the particular relief depended. The question was therefore one which involved the jurisdiction of the trial Court; the trial court could not, by an erroneous finding upon that question, confer upon itself a jurisdiction which it did not possess and its order was therefore liable to be set aside by the High Court in revision.