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PETITIONER: SRINIVAS RAM KUMAR

       Vs.

RESPONDENT: MAHABIR PRASAD AND OTHERS.

DATE OF JUDGMENT: 09/02/1951

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND

CITATION:  1951 AIR  177            1951 SCR  277  CITATOR INFO :  R          1964 SC 136  (11)  R          1964 SC 818  (9)  D          1978 SC1362  (25)

ACT:     Pleadings--Inconsistent   pleas--Plaintiff   suing   for specific  performance  alleging  that  money  was  paid   as price--Defendant   pleading  that  money  was  received   as loan--Plaintiff’s  case  not proved-Whether  decree  can  be given for recovery of money as loan on defendant’s plea.

HEADNOTE:     Though the court would not grant relief to the plaintiff on a case for which there was no foundation in the pleadings and  which  the  other side was not called upon  or  had  no opportunity  to meet, yet, when the alternative  case  which the  plaintiff could have made was not only admitted by  the defendant  in  his written statement but was  expressly  put forward  as an answer to the claim which the plaintiff  made in  the suit. there would be nothing improper in giving  the plaintiff a decree upon the case which the defendant himself makes.  In such circumstances, when no injustice can  possi- bly  result to the defendant, it may not be proper to  drive the plaintiff to a separate suit.     The   plaintiff brought a suit for specific  performance of  an agreement to sell a house alleging that he  had  paid Rs. 30,000 towards the price and had been put in  possession in  part  performance  of the contract,  but  the  defendant pleaded that the amount of Rs. 30,000 was received as a loan and  the plaintiff was put in possession only to  facilitate payment  of interest, and the court found that  the  defend- ant’s plea was true: Held, that a decree could be passed  in favour  of  the  plaintiff for recovery of the  sum  of  Rs. 30,000  and  interest remaining due under the  agreement  of loan pleaded by the defendant, even though the plaintiff had not set up such a case and it was even inconsistent with the allegations in the plaint.     Babu  Raja  Mohan Manucha v. Babu  Manzoor  (70  I.A..1) referred to.

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JUDGMENT:     CIVIL  APPELLATE JURISDICTION : Appeal from  a  judgment and  decree of the High Court of Judicature at  Patna  dated 29th August, 1947, in First Appeal No. 13 of 1945, modifying a decree of the Subordinate Court of Gaya in O.S. No. 59  of 1943: Civil Appeal No. 82 of 278     S.P.  Sinha  (C. R. Pattabhi Raman and B.K.  Saran  with him) for the appellant.    Udai Bhan Chaudhry for respondents Nos. 1 and 2.     Haris Chandra (N. C. Sen, with him) for respondents Nos. 3 to 7.     1951.  February 9.  The judgment of the Court was deliv- ered by     MUKHERJEA J. --This appeal is on behalf of the plaintiff 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  defendants second party who, it is alleged,  agreed  to sell  the  house to the plaintiff but  subsequently  resiled from the agreement and sold the same to the defendants first party who purchased it with notice of the contract.     The  plaintiff’s case, in substance, iS that in  Septem- ber, 1941, the defendants 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 defendants thereupon  approached the  plaintiff firm and a contract was entered into  by  and between  them  sometime 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 plaintiff firm on behalf of the vendors to a creditor of the latter on 28th October, 1941. The vendors in their turn put the plain- tiff  in possession of the house agreed to be sold  in  part performance  of the contract and promised to execute a  con- veyance 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 plaintiff. The second  party  de- fendants,  however, went back on their promise and  did  not execute the conveyance in favour of the plaintiff even after they  got back their title deeds from Jadu Ram; and  on  the other hand, they sold the house to the defendants first 279 party on August 13, 1943. The plaintiff was thus obliged  to bring  this suit, claiming specific performance of the  con- tract of sale.     The  suit was contested by both sets of defendants.  The second  party  defendants contended inter alia  that    they never agreed to sell their house at Gaya to the plaintiff, and the story of a contract of sale as set up  by the  plaintiff was entirely false. They admitted  that  they were in need of money and hence approached the plaintiff for a  loan and the plaintiff 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 plaintiff was put in possession of the same.     This   defence  was reiterated by the first  party.  de- fendants  who further pleaded that they were bona fide  pur- chasers  for value having no notice of any contract of  sale with the plaintiff.     The  Subordinate Judge, who heard the suit, came to  the conclusion, on the evidence adduced by the parties, that the

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story  of a contract of sale, as alleged  by the  plaintiff, was not established and it was not in pursuance of any  such contract  that  the plaintiff was put in possession  of  the house.  It was held that the defendants’ story was true  and that the  plaintiff  did advance a sum of Rs. 30,000 to  the defendants  second party, but this was by way of a loan  and not  as part payment of the consideration money. So  far  as the first party defendants 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 plaintiff’s claim for specific performance but as the second party defendants admitted that they had taken an advance  of Rs.  30,000 from the plaintiff, a money decree was given  to the  plaintiff  for this sum against these  defendants  with interest  at  6% per annum from the date of  the  suit  till realisation.     Against  this decision, the plaintiff took an appeal  to the High Court at Patna, and the second party 280 defendants  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  High Court  who,  by their judgment dated August 29,  1947,  dis- missed  the appeal of the plaintiff and allowed  the  cross- objections  preferred  by the second party  defendants.  The learned  Judges held, concurring with the trial court,  that no case of concluded contract between the parties was estab- lished by the evidence adduced in the case, and the fact  of the plaintiff being put in possession of the house could not be  regarded as an act of part performance of any such  con- tract. The High Court agreed with the trial judge in holding that  the  sum of Rs. 30,000 was advanced as a loan  by  the plaintiff  to the second party defendants, though  the  evi- dence was not very clear regarding payment of interest  upon it, and that the first party defendants were purchasers  for value without notice.  The High Court held further that even if  there was a contract, its terms were vague  and  indefi- nite,  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 interest of the minor.  In the opinion of  the High  Court,  the money decree granted  against  the  second party  defendants was not warranted in law as no case  of  a loan  was made by the plaintiff 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 plaintiff by the  trial court  was set aside.  It is against this judgment that  the plaintiff has come up on appeal to this court.     The learned counsel appearing for the appellant contends before  us  that the findings upon which  the  courts  below disbelieved  the  story of the plaintiff 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  High  Court was wrong in setting aside the  decree  for money which was given 281 against the second party defendants by the trial judge.     The first contention put forward by the learned  counsel appears  to us to be plainly unsustainable. When the  courts below  have given concurrent findings on pure  questions  of fact,  this court would not ordinarily interfere with  these findings  and review the evidence for the third time  unless there  are  exceptional circumstances  justifying  departure

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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  af- fected  by violation of any rule of law or  procedure.   The practice adopted by this court is similar to what has always been  acted  upon by the Judicial Committee.  To  quote  the words  of Lord Thankerton in Bibhabati v.  Ramendra  Narayan (1)  "it  is  not by any means  a  cast   iron   practice’’; there   may  occur  cases of unusual  nature   which   might constrain  us to interfere with the concurrent  findings  of fact  to  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 agreement upon which the plaintiff’s 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 conclusions which he arrived at, have been affirmed in their entirety  by  the High Court on appeal.   In  these  circum- stances, we see no reason whatsoever to go beyond the  facts which  have  been found against the appellant  by  both  the courts below.     As  regards  the  other point, however, we  are  of  the opinion  that the decision of the trial court was right  and that the High Court took an undoubtedly rigid and  technical view in reversing this part of the decree of the Subordinate Judge.   It is true that it was no part of  the  plaintiff’s case as made in the plaint that 282 the  sum  of Rs. 30,000 was advanced by way of loan  to  the defendants  second party.  But it was certainly open to  the plaintiff  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 pursuance 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 plaintiff  may rely upon different rights alternatively and there is  noth- ing  in  the Civil Procedure Code to prevent  a  party  from making  two  or more inconsistent sets  of  allegations  and claiming  relief thereunder in the alternative.   The  ques- tion,   however, arises whether, in the absence of any  such alternative  case in the plaint it is open to the  court  to give him relief on that basis.  The rule undoubtedly is that the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other  side  was not called upon or had  an  opportunity  to meet.   But when the alternative case, which  the  plaintiff could  have made, was not only admitted by the defendant  in his  written statement but was expressly put forward  as  an answer  to the claim which the plaintiff made in  the  suit, there  would be nothing improper in giving the  plaintiff  a decree  upon the case which the defendant himself makes.   A demand  of the plaintiff based on the defendant’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 defendant  in  his pleadings.   In such circumstances, when no  injustice   can possibly  result to the defendant, it may not be  proper  to drive the plaintiff to a separate suit.  As an  illustration of  this principle, reference may be made to the  pronounce- ment of the Judicial Committee in Babu Raja Mohan Manucha v. Babu Manzoor (1).  This appeal arose out of a suit commenced by  the plaintiff appellant to enforce a mortgage  security.

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The  plea of the defendant was that the mortgage  was  void. This (1) 70 I.A. 1. 283 plea  was given effect to by both the lower ’courts as  well as by the Privy Council. But the Privy Council held that  it was open in such circumstances to the plaintiff to repudiate the transaction altogether and claim a relief outside it  in the  form  of restitution under section 65  ’of  the  Indian Contract Act. Although no such alternative claim was made in the plaint, the Privy Council allowed it to be advanced  and gave a decree on the ground that the respondent 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 appellant even though the  appeal was heard ex parte in the absence of the respondent.    Mr. Harish Chandra appearing for the second party defend- ants raised the question of interest in connection with  the plaintiff’s claim for a money decree. His contention is that the  plaintiff could not claim any interest so long  has  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 plaintiff  by  registered post on July 12, 1943,  which  the plaintiff  refused to accept. The first part of the  conten- tion is undoubtedly correct and is not disputed on behalf of of the plaintiff. 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 plaintiff 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 defendants undoubtedly had  the use of this money all this time and in our  opinion the  plaintiff  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 deter- mined  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 plaintiff’s possession of the house ceased by the end of August, 1943. 284   The result is that we allow the appeal in part; the decree made by the High Court is affirmed in so far as it dismissed the claim for specific performance- The plaintiff,  however, will be entitled to a money decree for the sum of Rs. 30,000 against the defendants second party with interest at 4%  per annum from the 1st of September, 1943, to the date of reali- sation. Each party to this appeal will bear his own costs.                   Appeal allowed in part. Agent for the appellant: R.C. Prasad. Agent for respondents: Tarachand Brij Mohan Lal.