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

2. On October 26, 1956 Pt. Prem Raj, the appellant, entered into an agreement with Shri Moti Ram Bhalla, respondent No.2 for the purchase of lands from Shri Lila Ram father of the appellant at the price of Rs. 1,025 per bigha on the terms and conditions mentioned therein. On December 18, 1956, the appellant and respondent No. 2 entered into a partnership to carry on the business of buying and selling lands and developing the same under the name and style of "L. M. G. Colonisers and Traders". Subsequently, on January 2, 1957 the said firm "L. M. G. Colonisers and Traders" entered into a deed of partnership with D.L.F. Housing and Construction (P) Ltd., respondent No. I herein to carry on the business of purchasing and developing the lands into a residential colony and to sell the same in plots either by auction or by tenders or in any other manner as the company, respondent No. I may find expedient after getting the scheme for development approved by the competent authority.On the same day i.e.. January 2, 1957 the newly formed partnership between the respondent No. 1 and L. M. G. Colonisers and Traders entered into an agreement for the purchase of the same land with Pt. Lila Ram on the terms and conditions set out therein. On June 11,1958 the parties cancelled the new partnership and agreement dated January 2, 1957 and entered into a fresh arrangement and executed the following four documentsA deed of dissolution of the new partnership between L. M. G. Colonisers and Traders (consisting of the appellant and respondent Nos. 2 and 1) entered into on 2nd January. 1957 (E x. P. 1).(ii) A deed of cancellation of agrement of sale of land between Lila Ram and the said new partnership firm of L. M. G. colonisers and respondent No. 1.(iii) A new agreement of safe of these same lands by Lila Ram in favour of respondent No. 1.(iv) An agreement to sell 22 plots out of the land agreed to be purchased from Lila Ram under the agreement stated in (iii) above by respondent No. 1 in favour of the appellant".By virtue of these documents the new partnership dated January 2. 1957 between L. M. G. Colonisers and respondent No. 1 came to an end as also the agreements dated January 2, 1957 by which Lila Ram had agreed to sell his lands to the said new partnership firm and there was a fresh agreement by Lila Ram to sell the same lands to D. L. F. Housing and Construction (Private) Ltd. respondent No. 1 at a certain price and out of the land thus to be bought, respondent No. 1 agreed to sell 22 plots of land to the appellant. After about 3 years, on or about June 8, 1961, the appellant gave notice to respondent No. 1 repudiating the arrangement dated June 11,1958 as void and claimed that the documents were not binding upon him. The appellant alleged that the deeds executed on June 11, 1958 were unlawful and void and inoperative against him as they were executed as a result of undue influence and coercion exercised upon him. In the alternative the appellant prayed for a decree for specific performance of the agreement dated June 11, 1958 to sell the aforesaid 22 plots of land and for damages in addition thereto. A preliminary objection was raised by the contesting respondent No. 1, D.L.F. Housing and Construction (P) Ltd. to the effect that the appellant having claimed that the agreement dated June 11,1958 was void and inoperative cannot in the same suit pray for specific performance of the same agreement. The Subordinate Judge, First Class. Delhi rejected the preliminary objection by his order dated February 26, 1962. Respondent No. 1 filed a Civil Revision Application No. 228-D of 1962 in the Circuit Bench of the Punjab High Court at Delhi. By his order dated February 14, 1964, Dulat J. allowed the Revision Application holding that the appellant having sued for a declaration that the agreement of June 11, 1958 was void, cannot in the alternative be permitted to sue for specific performance of the agreement and therefore the suit must fail so far as the relief for specific performance was concerned.3. This appeal is brought by special leave from the order of the Punjab High Court dated February 14,1964 in Civil Revision Application No. 228-D of 1962.

Reasoning:
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.