Case: Patel Kantilal Parshottamdas (D)  Vs. Jitendrakumar Nanjibhai Mistry .(D) Th.Lrs &amp;Ors

law. It would be open to the parties to amend the pleadings accordingly and to lead the evidence - if the parties are so advised - in addition to the evidence already on record. It is clarified that it would also be open for the parties and the trial court to refer to and rely upon the evidence already on record. Since the suit is very old, it is expected that trial court would dispose of the suit as expeditiously as possible."6. It is this outcome which is unpalatable to the legal heirs of Kanti, who have filed the special leave petition which has been converted into appeal after grant of leave therein.7. Before adverting to the arguments of the learned counsel for the parties, we deem it appropriate to record that insofar as suit filed by Jitender for specific performance of the contract is concerned, a plea of part performance of the contract was taken in the said suit which was predicated on the averment that on an execution of the Agreement to Sell, possession of the suit property was handed over to the purchaser. The trial court held that it was not so as the possession was not given consequent upon entering upon the said agreement but on account of relationship between the parties. The High Court termed this finding as erroneous and held that parting with possession of the suit property was pursuant to the Agreement to Sell entered into between the parties. However, appeal of Jitender against the judgment of the trial court for specific performance has been dismissed on the ground that even if such a possession was taken, it did not absolve the purchaser for his obligation to comply with the requirement of showing his readiness and willingness to execute the sale deed and that Section 53A of the Transfer of Property Act, 1882 could be used as a shield and not as a sword. The High Court also affirmed the finding of the trial court that the suit filed by Jitender, in any case, was barred by limitation and, therefore, Jitender could not avoid the inevitable result, merely by relying on Section 53A of Transfer of Property Act, 1882. The result is that suit for specific performance filed by Jitender stands dismissed and the judgment of the High Court has attained finality as there is no appeal by the respondents (legal heirs of Jitender).8. In this hue, we now revert back to the decision of the High Court in respect of suit filed by Kanti (predecessor of appellant) which is remanded back to the trial court as noted above. We are of the opinion that the aforesaid course of action adopted by the High Court in respect of relief claimed by Kanti in a suit is not appropriate. In the suit filed by him, Kanti had pleaded that after the execution of the agreement, Jitender failed to perform his obligation contained therein as he defaulted in making the payment of balance consideration within the time stipulated. On that basis, the prayer made in the suit was that the amount of earnest money under the agreement stood forfeited as the agreement had become non-effective, null and void and consequently possession of part of suit property held by Jitender was illegal which should be handed over to the plaintiff. Mesne profit was also claimed. Second suit filed by Kanti was specifically for mesne profit and for possession. No case was set up by Kanti that agreement was void because of the reason that he was only a lessee in the suit property which was given to him by the original owner Jeevandas for a period of 99 years and as he had not become the owner thereof, the agreement was in the nature of `contingent contract. Obviously, no evidence was led by any of the parties to this effect in the absence of pleadings. Therefore, High Court could not, of its own, set up a new case which was not a case pleaded by any of the parties. The liberty to amend the pleadings which is given is in the nature of allowing the appellant to come out with altogether a new case not even pleaded or argued before the High Court. Such an amendment could not have been allowed even if an application under Order VI Rule 17 CPC was filed for amending the plaint. In fact, the appellant had not even sought this remedy. The decree passed by the High Court on this ground and direction to the trial court to dispose of the case afresh after allowing amendment in the pleadings and leading further evidence on amended pleadings is, therefore, clearly erroneous in law. We, thus, set aside this direction.9. In the suit filed by Kanti (predecessor in interest of the appellant), his main reliefs were to declare agreement to sell as void and for possession-cum-mesne profit. Insofar as the first relief is concerned, this result stands achieved on the dismissal of the suit filed by Jitender for specific performance and in view of the findings of the courts below that Jitender failed to fulfill his obligations under the said agreement and could not establish that he was ready and willing to perform his part of the contract. The only question is as to whether the relief of possession could have been decreed. The trial court had decreed the suit to this effect. Against this decree, respondents had filed the appeal. The High Court has not dealt with that aspect and instead remitted the case back for fresh consideration, which direction has been set aside by us.Though, this issue was argued before us, however, we are of the opinion that it may not be proper for this Court to consider this aspect inasmuch as this issue had arisen in the appeal of the respondents in the High Court and respondents are not in appeal before us. It would, therefore, be more appropriate if the aforesaid issue is decided by the High Court.

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

Explanation:
1[ds]8. In this hue, we now revert back to the decision of the High Court in respect of suit filed by Kanti (predecessor of appellant) which is remanded back to the trial court as noted above. We are of the opinion that the aforesaid course of action adopted by the High Court in respect of relief claimed by Kanti in a suit is not appropriate. In the suit filed by him, Kanti had pleaded that after the execution of the agreement, Jitender failed to perform his obligation contained therein as he defaulted in making the payment of balance consideration within the time stipulated. On that basis, the prayer made in the suit was that the amount of earnest money under the agreement stood forfeited as the agreement had becomenull and void and consequently possession of part of suit property held by Jitender was illegal which should be handed over to the plaintiff. Mesne profit was also claimed. Second suit filed by Kanti was specifically for mesne profit and for possession. No case was set up by Kanti that agreement was void because of the reason that he was only a lessee in the suit property which was given to him by the original owner Jeevandas for a period of 99 years and as he had not become the owner thereof, the agreement was in the nature of `contingent contract. Obviously, no evidence was led by any of the parties to this effect in the absence of pleadings. Therefore, High Court could not, of its own, set up a new case which was not a case pleaded by any of the parties. The liberty to amend the pleadings which is given is in the nature of allowing the appellant to come out with altogether a new case not even pleaded or argued before the High Court. Such an amendment could not have been allowed even if an application under Order VI Rule 17 CPC was filed for amending the plaint. In fact, the appellant had not even sought this remedy. The decree passed by the High Court on this ground and direction to the trial court to dispose of the case afresh after allowing amendment in the pleadings and leading further evidence on amended pleadings is, therefore, clearly erroneous in law. We, thus, set aside this direction.9. In the suit filed by Kanti (predecessor in interest of the appellant), his main reliefs were to declare agreement to sell as void and forprofit. Insofar as the first relief is concerned, this result stands achieved on the dismissal of the suit filed by Jitender for specific performance and in view of the findings of the courts below that Jitender failed to fulfill his obligations under the said agreement and could not establish that he was ready and willing to perform his part of the contract. The only question is as to whether the relief of possession could have been decreed. The trial court had decreed the suit to this effect. Against this decree, respondents had filed the appeal. The High Court has not dealt with that aspect and instead remitted the case back for fresh consideration, which direction has been set aside by us.Though, this issue was argued before us, however, we are of the opinion that it may not be proper for this Court to consider this aspect inasmuch as this issue had arisen in the appeal of the respondents in the High Court and respondents are not in appeal before us. It would, therefore, be more appropriate if the aforesaid issue is decided by the High Court.