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Pujari Narasappa and anr. Vs. Shaik Hazrat and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtKarnataka High Court
Decided On
Case NumberRegular Appeal (H) No. 28 of 1956
Judge
Reported inAIR1960Kant59; AIR1960Mys59
ActsHyderabad Prevention of Agricultural Land Alienation Act
AppellantPujari Narasappa and anr.
RespondentShaik Hazrat and ors.
Excerpt:
- labour & services section 4(6): [s. abdul nazeer, j] statutory liability of the employer to pay gratuity - held, the act is enacted for introducing a scheme for payment of gratuity for certain industrial and commercial establishments as a measure of social security. it is a beneficent piece of social legislation expressly drafted in the interest of employees for payment of statutory gratuity to them. gratuity is a retirement benefit for long and continuous service as a provision for old age. it is earned as a matter of right subject to fulfilling the conditions therefor. section 4 of the act prescribes the statutory liability of the employer to pay gratuity and the right of the employee to seek it whenever it becomes payable. it is only under sub-section (6) of section 4 that the.....miriqbal hussain, j. (1) this is an appeal filed by the plaintiffs poojari narasappa and kallurappa against the judgment and decree passed by the subordinate judge, raichur in o. s. no. 12/1 of 1953. the facts of the case are as follows :(2) plaintiffs' suit is for specific performance of a contract to sell four lands survey nos. 769, 770, 771 and 773 in kallur village, manvi taluk, raichur: district. the plaintiffs-appellants alleged that the first defendant--first respondent, shaik hazarath agreed to sell these lands to them as per agreement dated 24th azur 1359 f corresponding to 24th october 1949 for a consideration of rs. 8, 000/- (i.g) and he executed the agreement marked as exhibit i in the case in favour of the plaintiffs. it is further plaintiffs the first defendant--first.....
Judgment:

Miriqbal Hussain, J.

(1) This is an appeal filed by the plaintiffs Poojari Narasappa and Kallurappa against the judgment and decree passed by the Subordinate Judge, Raichur in O. S. No. 12/1 of 1953. The facts of the case are as follows :

(2) Plaintiffs' suit is for specific performance of a contract to sell four lands survey Nos. 769, 770, 771 and 773 in Kallur Village, Manvi Taluk, Raichur: District. The plaintiffs-appellants alleged that the first defendant--first respondent, Shaik Hazarath agreed to sell these lands to them as per agreement dated 24th Azur 1359 F corresponding to 24th October 1949 for a consideration of Rs. 8, 000/- (I.G) and he executed the agreement marked as Exhibit I in the case in favour of the plaintiffs. It is further plaintiffs the first defendant--first respondent has sold the lands to defendants 2 and 3 Dodda Mahadeva and Sanna Mahadeva minors by guardian Master Siddappa for a sum of Rs. 12, 000/- as per the sale deed marked as Exhibit A. 1 in the case dated 1-5-1950. Therefore the plaintiffs have prayed for a decree against the defendants for specific performance of the contract dated 24-10-1949 and they have also prayed that the first defendant should execute a proper sale deed in respect of the said lands and get it registered after receiving the consideration therefor.

(3) Defendant 1 (Respondent 1) has denied the execution of the agreement Exhibit I. He had also alleged that as he is an agriculturist, therefore a member of protected class, permission to sell the lands from the Collector was needed. He therefore, filed an application for obtaining permission to sell the lands in favour of defendants 2 and 3. During the course of those proceedings, the plaintiffs appellants intervened and volunteered to pay a sum of Rs. 12, 000/- (I.G.) and prayed that the lands may be sold in their favour instead of in favour of defendants 2 and 3 and on this application the Collector granted several adjournments to the plaintiffs to pay the money which they promised to do. As they failed to do so, he granted permission to defendant to sell the lands in favour of defendants 2 and 3 (respondents 2 and 3) for a sum of Rs. 12, 000/-. Hence the first defendant contends that the plaintiffs' suit for specific performance is not maintainable either in law or on facts and hence is liable to be dismissed.

(4) Defendants 2 and 3 by separate statement supported the first defendant's contention.

(5) On these pleadings a number of issues were raised in the case. The important ones are:

1. Whether defendant I agreed to sell the disputed lands to plaintiff for Rs. 8000/- and obtaining Rs. 550/- as earnest money executed an agreement the remaining amount should be paid after execution and registration of the sale deed?

Issue No. 6 as amended runs as follows:

What is the effect of the permission of the Revenue Department to sell in favour of Defendants and 3 all the suit properties. Whether defendant, 2 and 3 got the sale deed executed with the knowledge of the agreement of sale relied by plaintiff and what is its legal effect and whether the suit is maintainable without a request to set aside the sale deed?

(6) The learned Subordinate Judges held the first issue in favour of the plaintiffs. He also held that there was a novation of the contract. The plaintiff had agreed to purchase the disputed lands for a sum of Rs. 12, 000/-. Not having done so in spite of repeated chances given to him to pay the amount by the Collector the Collector gave permission to the first defendant to sell the India in favour of defendants 2 and 3. Hence the sale of the land after due permission from the Collector in favour of defendants 2 and 3 is a valid one and the said defendants are bona fide purchasers for value. In view there of, the learned Subordinate Judge dismissed the plaintiff's suit.

(7) Against the said judgment and decree the plaintiffs have preferred this appeal.

(8) During the pendency of the appeal, the first defendant (first respondent) died on 1-4-1958 and his legal representatives have been brought on record.

(9) Cross-objections were filed by the respondents against the finding of the learned Subordinate Judge, Raichur on issue No. 1 and also against his finding regarding costs.

(10) he main contentions of Sri Appa Rao, the learned counsel for the appellants are:

1. That there is no novation of the contract.

2. That the Collector's permission to sell the lands is not necessary in view of the fact that the suit was instituted after the coming into force of the Constitution of India and hence the Act, viz. Prevention of Agricultural Land Alienation Act (Act No. 111 of 1349F) is ultra vires of the Constitution as the provisions of this Act contravene Art. 15 of the Constitution.

(11) It is necessary to refer to a few material dates in this respect. The agreement of sale of the lands alleged by the plaintiffs marked as Exhibit I is dated 24th of Azur 1359 F corresponding to 24-10-1949. Permission to sell these lands was granted by the Additional Collector, Raichur to the first defendant in favour of Defendants 2 and 3 as per Exhibit A I is dated 1-5-1950. The suit was filed by the plaintiffs for specific performance on 29-4-1950. The Constitution of India was promulgated on 26-1-1950.

(12) The first point to be considered is whether the plaintiff, can bring a suit for specific performance in view of the fact that permission to sell the lands in his favour has not been granted by the Collector; but it has been granted in favour of defendants 2 and 3. In this connection, a brief reference to some of the provisions of the Hyderabad Prevention of Agricultural Land Alienation Act, Act III of 1349F is necessary.

The preamble of this Act states that it is expedient to frame a law regarding alienation of agricultural land by which certain agricultural classes may be protected from the evil effects of the land alienation. The emphasis is on the words 'agricultural classes' and the object of the Act is to protect their interests. Section 4 of the Act deals with the sanction of the Talukdar or the Collector which is necessary for permanent alienations of lands. It runs as follows.

'Notwithstanding anything contained in any other Act for the time being in force, no permanent alienation of land shall take effect as such unless sanction is given thereto by the Talukdar. Such sanction may be given even after the permanent alienation of the land is completed in any other manner.' Section 18 deals with conditions regarding registration of instruments and it lays down that instruments which contravene any provisions of this Act shall not be admitted to registration. Section 20 bars the jurisdiction of Civil Courts.

Section 20(1) runs as follows:

'A Civil Court shall not have jurisdiction in any matter which the Government or any Government officer is empowered by this Act to dispose of. Section 20(2).

'No civil court shall take cognizance of the manner in which the Government or any Government officer may exercise any power vested in him by or under this Act.'

(13) It is argued with great force by Sri Appa Rao the learned counsel for the appellants that this Act offends the provisions of Art. 15(1) of the Constitution of India. Article 15(1) of the Constitution runs as follows:

'The State shall not discriminate against any citizen on the ground only of religion, race, caste, sex, place of birth or any of them.'

Sri Appa Rao argued that the schedule of agricultural classes which contains the following particulars--

1. Muslims:--All Muslims except Arabs, Rohillas, Kabuli or Afghani Pathans, Kutchi-Memons and Boris.

2. Hindus:--Marathas, Koli, Mali, Telenga, Wanjara, Hatkar, Kapu, Reddi, Bords, Bedar, Gollar etc. etc., Lingayats with the exception of sub-groups of Jangam,, Virakat, Acharya, Mathpati etc.

3. Adi Hindus:--Dhed. Mala, Mahar, Madiga, Mochi etc.

4. Primitive Tribes: Bhill, Gond, Andh, Lambadas etc.

5. Indian Native Christians: All Indian Native Christians

is based on grounds of religion and caste and therefore is hit by the provisions of Art. 15(1) of the Constitution of India.

(14) A close scrutiny of the provisions of this Act as well as of the schedule clearly indicate that the contentions of Sri Appa Rao are without force. The preamble of the Act is couched in general terms. It safeguards the agricultural classes and not a person belonging to a particular community like the Muslims or Hindus or Christians. So also the other provisions which I have already referred to are couched in general terms. Moreover a perusal of the schedule indicates that the basis of the classification is their avocation in life, viz. agriculture, and not the caste to which they belong. If that was not the case, amongst Muslims Arabs, Rohillas, Kabuli or Afghani Pathans, Kutchi Memons and also Parsis would hot have been excluded.

So also amongst the Hindus communities which are commercial communities or persons whose avocation in life is not agriculture like Jangams. Matadipathis, Vysya merchants etc., would not also have been excluded. The classification Adi Hindus and primitive tribes in the schedule shows that protection is given in the schedule shows that protection is given to backward classes whose profession is agriculture. If the classification were based upon religion of the person then all Muslims and all Hindus would have been included instead of exclusion of some particular classes amongst the persons who profess the said religions. For instance Kutchi-Memons and Boris are essentially commercial communities and not agriculturists.

Therefore, they are excluded from the provisions of this Act. Parsis again are essentially a commercial community and they are also excluded from the provisions of this Act. Thus, the basis of the Act is not the classification according to the religion but classification according to the avocations in life and in particular, the purpose of the Act is to safeguard the interests of agriculturists to whom special protection is needed so that they may not be deprived of what little agricultural land they may not be deprived of what little agricultural land they may own or possess. To me it appears that the classification is neither unreasonable nor based on purely religion but based on certain sound principles.

(15) I am supported in this view by the decision reported in State of Madras v. V. G. Rao, : 1952CriLJ966 . The test of reasonableness with regard to a legislative enactment was laid down by his Lordship Sri Patanjali Sastri C. J. as follows:

'This court had occasion in Dr. Khare's case to define the scope of the judicial review under clause 5 of Art. 19 where the phrase 'imposing reasonable restriction on the exercise of the right' also occurs and four out of the five judges participating in the decision expressed the view (the other judge leaving the question open) that both the substantive and procedural aspect of the impugned restrictive law should be examined from the point of view of reasonableness, that is to say, the court should consider not only factors such as the duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has been authorised.

It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.'

I would like to emphasise the words of his Lordship viz., 'that the test of reasonableness should be applied to each individual statute impugned and no abstract standard of general pattern or reasonableness can be laid down as applicable to all cases.' The reasonableness under the impugned statute is, therefore to be tested by the particular Act or law that is impugned. As I have stated already the law tries to safeguard the interests of such persons belonging to agricultural classes who are not in a position to safeguard their own interest. Therefore, as I have stated the basis of the classification is the avocation of the particular persons and not their religion and as such, the classification is a reasonable one.

(16) Again Art. 15 of the Constitution lays down that there shall not be any discrimination against a citizen on grounds only of religion, race, caste, sex, place of birth or any of them. If the argument of Sri Appa Rao is carried to its logical conclusion the word 'only' would be redundant and meaningless. The use of the word 'only' connotes that discrimination that is discountenanced by the Constitution is discrimination on account of purely and solely on any of these grounds, viz., of religion, race, caste, sex, place of birth or any of them. As I have stated above the classification that has been made in the schedule is not based on the basis of religion but on the avocation in life. The classification is based on the principle of safeguarding the agricultural classes to whatever caste, colour, creed or religion they might belong.

(17) In this connection, I would like to refer to a decision reported in Smt. Anjali Roy v. State of West Bengal, : AIR1952Cal825 . Therein His Lordship Chakravartti (Acting C.J) had laid down Article 15(1) of the Constitution of India. His Lordships has stated as follows:

'The discrimination which is forbidden by Art. 15(1) is only such discrimination as is based 'solely' on the ground that a person belongs to a particular race or caste or professes a particular religion or

was born at a particular place or is of a particular sex and on 'no other ground'. A discrimination based 'on one or more' of these grounds and also on other grounds is not hit by the Article'. (The underlining (herein ' ') is mine).

(18) It was held in that case on facts that the refusal to admit a lady candidate to a mixed college was not malafide or based solely on the grounds that she was a woman but because under a scheme of better organisation of both male and female education at that place which covered development of women's college as a step towards the advancement of female education, it was considered reasonable to restrict further admission of women students to the mixed college and hence there was no discrimination within the meaning of Article 15(1) of the Constitution.

(19) His Lordship Justice Chakravarthi has used the word 'only' and 'solely' and has emphasised the word only and solely regarding discrimination which applies to the facts of the present case as well.

(20) There is another reason why Art. 15 well not be of any avail to the plaintiffs in this case. The plaintiffs have themselves stated that they belong to the protected class. In fact in the application they have made before the Collector as per Exhibit 2 in this case, they have stated in unmistakable terms that they are entitled to the protection granted under the above said Act in view of the fact that they belonged to what is called ''Mahfuztabkha'' i.e., to the protected class. Their complaint is that the sale is in favour of defendants 2 and 3 who are 'jangams' and therefore do not belong to the protected class.

Hence no permission should be granted for sale to the first defendant to sell the lands in favour of defendants 2 and 3. Having taken shelter under the provisions of the above-said Act, it looks rather strange that the plaintiffs should try to challenge the very Act that has given been then protection. Just because the decision of the Collector was not in the favour due to certain reasons which I am going to state a little later does it now lie in the mouth the plaintiffs to challenge the validity of the Act that the plaintiffs should not be allowed to below hot and cold at the same time.

(21) Two decisions of the Supreme Court reported in Charanjitlal Chowdhury v. Union of India : [1950]1SCR869 ; Dwarkadas Shrinivas v. Sholapur Spinning & Weaving Co. Ltd. : [1954]1SCR674 (second Sholapur case) lay down the principle that it is only the person aggrieved that can seek refuge) and shelter under the Constitution. In : [1950]1SCR869 it was held that the fundamental grievance of the petitioner that his fundamental rights under Article 31(a) of the Constitution of India had been infringed by the impugned law inasmuch as the State had taken possession of the Company's property and that all the rights and privileges annexed to his shares and thereby been lost, was discountenanced by the Supreme Court which took the view that the petitioner was still in possession of his share, that he had power to dispose of that share, that he could receive dividend on that share and that though he had lost some of the privileges annexed to his share it could not be said that the State had taken the possession of his share or was exercising the privileges which he enjoyed as a share holder. His Lordship Justice Fazl Ali held in that case as follows:

'It has been held in a number of cases in the United States of America that no one except those whose rights are directly affected by a law can raise the question of constitutionality of that law. This principles has been very clearly stated by Hughes J. In McCabe V. Atchison, (1914) 235 US 151 in these words:

'It is an elementary principle that in order to justify the granting of this extraordinary relief, the remedy at law must clearly appear. The complainant cannot succeed because someone else may be hurt. Nor does it make any difference that other persons who may be injured are persons of the same race or occupation. It is the fact clearly established of injury to the complainant--not to others which justifies judicial interference.

On this statement of the law, with which I entirely agree, the scope of the discussion on this petition is greatly restricted at least in regard to the first two fundamental rights. The Company and the share holders are in law separate entities, and if the allegation is made that any property belonging to the company has been taken possession of without compensation or the right enjoyed by the company under Art. 19(1)(F) has been infringed, it would be for the company to come forward to assert or vindicate its own rights and not for any individual share holders to do so.'

(22) The question to be considered is whether the plaintiffs are the parties aggrieved. As I have stated above, they themselves took shelter under the provisions of the impugned Act. They categorically stated that it applied to them. If so, how are they aggrieved? It is because of the decision of the Collector against them? If the grievance is against the order of the Collector, then it is against the result of the proceedings in the revenue courts to which they were parties. As they proceeded on the basis of the impugned Act, plaintiffs should have challenged it at the very beginning and they should not have submitted themselves to their jurisdiction. Having not done so, plaintiffs cannot challenge the very Act giving them the protection. Therefore, it is clear they are not the parties aggrieved.

(23) The second Sholapur case reported in : [1954]1SCR674 also emphasises the principles laid down in Charanjitlal's case : [1950]1SCR869 that it is the person aggrieved that can challenge the validity of the Act. Referring to Charanjitlal's case, : [1950]1SCR869 . His Lordship S. R. Das J. (As he then was) has stated as follows :

'I cannot see how the mere form of the proceeding can affect the question. The true principle being that only a person who is directly affected by law can challenge the validity of that law and that a person whose own rights or interests have not been violated or threatened cannot impugned the law on the ground that somebody else's right has been infringed. The same principle must prevail irrespective of the form of the proceedings in which the question of constitutionality is raised.

In the present case plaintiffs challenge the constitutionality of the impugned Act on the other persons; in other words the rights of non-protected class. That kind of plea is not open to them.

(24) Again the proceedings in this case before the Collector for permission under the impugned Act started prior to the coming into force of the Constitution. If so the question arises whether the provisions of the Constitution have retrospective effect and invalidate the proceedings so started prior to the Constitution. In this connection, I would like to refer only to two cases of the Supreme Court--the case of Janardhana Reddy v. State of Hyderabad, : [1951]2SCR344 and Keshavan v. State of Bombay, : 1951CriLJ680 , which lay down the principle that the provisions of the Constitution have no retrospective effect.

There is also the Full Bench decision of the Mysore High Court reported in Abdul Khader v. State of Mysore, AIR 1951 Mys. 72 which lays down the principle that pending proceedings are not hit by the provisions of the Constitution. It is laid down to that case that assuming that the impugned Act, the Mysore Special Criminal Courts Act (Act 24 of 1942) does not affect the pending proceedings launched earlier to the commencement of the Constitution having regarded to Section 6 of the General Clauses Act, it cannot be said that the Special Tribunal set up by the impugned Act and before which the proceedings were pending ceased to exist and the proceedings have been rendered void. The proceedings remain unaffected and could continue under the impugned Act as if the Act has not been repealed.

(25-26) The next point to be considered is whether if the impugned Act is not ultra vires and that is our opinion--can the civil court agitate a decision arrived at by the Collector under the said Act? Section 20 of the Hyderabad Prevention of Agricultural Land Alienation Act is a bar to such suits as it lays down in unmistakable terms that a civil court shall not have jurisdiction in any matter which the Government or any Government officer is empowered by or under this Act to dispose of.

And sub-section (2) of the said section lays down that no civil court shall take cognisance of the manner in which the Government or any Government officer may exercise any power vested in him by or under this Act. Giving or not giving permission is solely within the purview of the Collector. Plaintiffs have submitted themselves to the jurisdiction of the Collector. If so they are bound by the provisions of Section 20 of the Act and they cannot reagitate the matter by means of a civil suit.

(27) To me it appears that Section 23 of the Contract Act is also a bar to the plaintiffs' suit. It runs as follows:

'The consideration and object of an agreement is lawful unless it is forbidden by law and is of such nature that if permitted it would defeat the provisions of any law or is fraudulent etc.'

If the relief is given to the plaintiffs as per their prayer it would defeat the provisions of the Hyderabad Prevention of Agricultural Land Alienation Act because it lays down as a condition for permanent alienation the sanction of the Collector, vide S. 4 of the Act. Plaintiffs are the persons who have come to the court without such a sanction while the defendant No. 1 relies upon that sanction and in pursuance of that sanction has disposed of the properties in favour of defendants 2 and 3.

So if the plaintiffs' suit is to be decreed, it clearly contravenes the provisions of S. 4 and not only the provisions of S. 4 but also the provisions of S. 18 of the Act which lays down that an instrument which contravenes any of the provisions of the Act shall not be admitted to registration. Plaintiffs have prayed that the sale deed should be executed by defendant No. 1 in their favour in respect of these lands and it should be registered. Can that be done in view of the prohibition under S. 18?

(28) There is a further point to be considered and that is this. The defendants have alleged that plaintiffs agreed before the Collector and offered to purchase the suit properties for a sum of Rs. 12, 000/- and that fact is not denied by the plaintiffs. If that is so, their original proposal to purchase these lands for Rs. 8, 000/- no longer subsists. On this basis the learned Subordinate Judge has held that there has been a novation of the contract by the plaintiffs and hence even if the contract for sale of the lands in favour of the plaintiffs for Rs. 8, 000/- is held to be valid, the plaintiffs cannot get a remedy and therefore the plaintiffs cannot get a remedy and therefore the learned Subordinate Judge has dismissed the suit.

In this connection a reference to a few facts is necessary. As is evident from the exhibits in this case and the records, the first defendant sought permission to sell the lands in favour of defendants 2 and 3 as per the defendant's exhibit 3 dated 10th of Bahman 1359F. Plaintiffs intervened as per defendant's exhibit No. 4 dated 31-1-1950 and stated that the lands must be sold to them for a sum of Rs. 8000/- basing their claim on the agreement to sell in their favour.

(28a) It is evident from the records of the Revenue Courts and particularly of the Revenue Board which has been marked as defendant's exhibit 9 in this case that the plaintiffs gave an offer of Rs. 12, 000/- for the purchase of the suit lands, they stated that they belonged to the protected class and they were entitled to the protection given to them by the Act to be exercised in their favour as against defendants 2 and 3 themselves who do not belong to the protected class. Time was given to them repeatedly at their request or at the request of their counsel Mr. Manikya Rao to pay the amount or at least to pay the earnest money but they failed to do so and hence the Collector ordered finally on 22-4-1950 that permission be given to the first defendant to sell the lands to defendants 2 and 3.

An appeal was filed by the plaintiffs before the Revenue Board and the Board taking into consideration all aspects of the case upheld the decision of the Collector and dismissed the plaintiffs' appeal. It is clear therefore from these proceedings that the plaintiffs did offer to purchase the suit lands for a sum of Rs. 12, 000/- and the Collector was inclined to order the sale of the lands in their favour for the said amount as against the non-protected class defendants 2 and 3. Plaintiffs have also admitted these proceedings. From the proceedings it is evident that there was a novation of the contract. Section 62 of the Indian Contract Act deals with the effect of novation and it runs as follows:

'If the parties to a contract agree to substitute a new contract for it or to rescind or alter it the original contract need not be performed.'

It is argued by Sri Appa Rao for the appellant that there is no completed contract as the offer of the plaintiff has not been accepted. But a close reading of the proceedings of the Revenue Courts culminating in the order of the Revenue Board clearly shows that the first defendant has agreed to this offer. His only grievance is that the amount has not been paid and neither the advance has been deposited by the plaintiffs and therefore sought the help of the Collector to permit him to sell the lands in favour of defendants 2 and 3. In view of the Court below, the plaintiffs' suit for specific performance of the agreement to sell the lands in their favour for Rs. 8, 000/- is incompetent and therefore the plaintiffs cannot get the remedy that they seek for in this suit.

(29) There is also another reason why the plaintiffs should not get this remedy. As is evident from the proceedings of the Revenue Court repeated chances were given to the plaintiff: to make good their order of purchase of the suit lands for a sum of Rs. 12, 000/- Further extension of time was made at the request of the plaintiffs' counsel from time to time. Ultimately when they failed to pay the amount or even failed to deposit certain amounts by way of earnest money the Collector granted permission to defendant 1 to sell the lands in favour of defendants 2 and 3.

It is a well known principle of law that a person who comes to Court seeking equity should not a case reported in Rahmat Unnisa Begum v. Shimoga Co-operative Bank Ltd., AIR 1951 Mysore 59. Where the plaintiff was irregular in the payment of the installments of the sale prize the judges of this Court held that plaintiff was not entitled to the specific performance of the contract of sale. Their Lordships of the Mysore High Court held that as the plaintiff was rather negligent and dilatory in making payment and the defendant had sold the property to a third person it was a fit case in which the Court should in its discretion, properly refuse specific performance and grant compensation to the plaintiff for breach of the agreement.

(30) The relief that is sought for by the plaintiff is specific performance of the contract. Section 22 of the Specific Relief Act states as follows:

'The jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such a relief merely because it is lawful to do so but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of Appeal.'

(30a) The following are cases in which the Court may properly exercise a discretion not to decree specific performance.

1. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant though there may be no fraud or misrepresentation on the plaintiff's part.'

I need not refer to the other clauses of the said section as they are not relevant.

(31) Though the plaintiffs had agreed to purchase the lands for a sum of Rs. 12, 000/- before the Collector, they have come to the Court for specific performance of the agreement to sell the lands for a sum of Rs. 8, 000/- only. If they wanted equities at the hands of the Court they would not have hidden the fact of their offer of Rs. 12, 000/- and based their claim on the agreement to sell for Rs. 8, 000/- Granting them the relief as per their prayer would certainly mean giving them an unfair advantage over the first defendant. It is not necessary for me to refer to any cases at length with regard to the question of laches.

(32) The case reported in Simon Jacob Silas v. Casper John Balthasar Kohlholf, AIR 1954 Trav-Co, 440, lays down the principle that where the plaintiff brings a suit for specific performance of contract for sale, the law insists as a condition precedent to the grant of a decree for specific performance that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of the contract to the date of hearing. Where the plaintiff wanted the implementing of the contract not according to the terms contained therein but with the modifications he deemed proper and even in the plaint the willingness disclosed was not a willingness to deposit the full amount due under it but such balance as remained after making the deduction be considered justifiable, held that if anything it was a negation of his 'continued readiness and willingness' to perform the obligations under the contract and should by itself entail a dismissal of his suit.

Specific performance is by no means an absolute right but one which rests entirely in judicial discretion and always with reference to the facts of a particular case. Where a trial court has exercised not discretion in one way, an appellate Court will not interfere unless it be established that the discretion has been exercised perversely, arbitrarily or against judicial principles.

(33) The only other point that remains to be considered is with regard to the cross objections. On issue No. 1 the learned Subordinate Judge has held in favour of the plaintiffs. Exhibit 1 is a plain paper document bearing on stamps much less a stamp of even an anna affixed to it. Neither is to a registered document. It has been contended by Sri Jagirdar, the learned counsel for the respondents that the learned counsel for the respondents that the learned Subordinate Judge has erred in coming to this finding on issue No. 1 in favour of the plaintiffs. In support of his contention, he relies on one important aspect, viz. That at the earliest possible opportunity plaintiffs have not alleged before the Collector before the filing of the suit that their claim is based on a written agreement.

Exhibit II which is filed by them proceeds on the basis that there was an agreement for the purchases of the suit lands for a sum of Rs. 8, 000/- but is silent as to whether the said agreement is in writing. Again it does not show that any earnest money was advanced or paid, much less either the sum of Rs. 505 as found in the agreement and Rs. 550/- as found in the plaint. The same attitude is maintained in the subsequent representations. Hence there is some force in the argument of Sri Jagirdar that this document Exhibit I is of a doubtful nature and must have been brought into existence at a later date.

(34) There is also another fact which supports the contention of the defendants and that is this. In the agreement Exhibit I, the advance is mentioned as Rs. 505/- while in the plaint the amount said to have been advanced is Rs. 550/-. Even in the first issue framed by the Court 'whether a sum of Rs. 550/- ' is found and not Rs. 505/-. It is argued by Sri Appa Rao for the appellants that it is only a mistake, perhaps due to the figures not properly scrutinised. But yet taking this fact along with the fact that the document is an unregistered one and is written on an unstamped paper, it gives rise to a lot of suspicion on the validity and the execution of the document itself. The learned Subordinate Judge on the evidence given by the plaintiffs and the writer of the document as well as of the attestors thereof has held the first issue in favour of the plaintiff.

However, we do not like to disturb this as our decision is based on other important matters disentitling the plaintiffs to the reliefs sought for by them. Sri Jahagirdar also contends that there is some evidence to show that there is not much love lost between the guardian of defendants 2 and 3 Master Siddappa on the one side and one of the witnesses P. W. 2 in this case Krishnachari. In the very exhibit filed by the plaintiffs themselves, viz., Exhibit II, the plaintiffs have stated that Master Siddappa in whose favour the first defendant wants to sell the land belongs to the opposite party. However that might be, we do not like to go further into the matter and disturb the finding of the learned Subordinate Judges on the first issue, because according to us, the suit itself is not maintainable.

(35) In the result, while confirming the judgment and decree of the learned Subordinate Judge, we dismiss the plaintiffs' suit. The result of this order is that the cross objections filed by the respondents also fail.

(36) In the circumstances of the case, we order that each party shall bear his own costs of the appeal as well as cross objections in this Court.

Ahmed Ali Khan, J.

(37) I agree.

(38) Order accordingly.


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